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Missed aortic aneurysm proves fatal ... Too-late cancer Dx blamed on neglected x-ray findings... More
Missed dissecting aortic aneurysm proves fatal
A 43-YEAR-OLD MAN was admitted to the hospital complaining of severe chest pain, shortness of breath, sweating, and dry mouth. After being seen by several physicians, the patient suffered an aortic dissection, which caused bleeding in the wall of the aorta, an aortic rupture, and bleeding into the pericardium. He died 2 days later.
PLAINTIFF’S CLAIM The defendants failed to order tests to rule out a dissecting aortic aneurysm and did not include aortic dissection in the differential diagnosis. They failed to provide appropriate drug therapy to decrease cardiac impulse and lower the systolic blood pressure. They did not obtain an emergency cardiac consultation or admit the patient to a cardiovascular surgical intensive care unit.
THE DEFENSE The defendants denied negligence and claimed that nothing they did or failed to do contributed to the patient’s death.
VERDICT $250,000 Michigan settlement.
COMMENT Just yesterday, a malpractice lawyer presented me with a case very similar to this one: a patient with unexplained chest pain who died of a dissecting aneurysm. Remember, not all chest pain is caused by coronary artery disease.
Too-late cancer Dx blamed on neglected x-ray findings
A LONG-TERM CIGARETTE SMOKER IN HER 50s saw a physician in 2001 for symptoms of pneumonia. The doctor prescribed antibiotics and referred her to another facility for a chest radiograph.
Five days later, she returned to the physician’s office, where she was seen by another internist in the practice. The internist noted that the chest radiograph showed parenchymal densities in the right lung. Parenchymal densities had also showed up on 2 previous chest radiographs, but were more prevalent on the latest film. The internist advised the patient to finish her antibiotic regimen; he did not prescribe further tests or treatment.
Over the following 40 months, doctors in the patient’s medical group examined her 8 times. Each time she complained of impaired respiration. The internist believed that the symptoms were caused by asthma.
In 2004, the patient was diagnosed with stage IV cancer of the right lung, which had spread to her bones and was untreatable. She died several weeks later.
PLAINTIFF’S CLAIM A proper diagnosis in 2001 would have allowed the cancer to be cured. A computed tomography scan should have been performed and a pulmonologist consulted at that time.
THE DEFENSE Findings from the radiograph from 2001 did not necessitate further action. Because the patient’s cancer had metastasized before that radiograph, treatment then (or later) would not have changed the outcome.
VERDICT $850,000 New York verdict.
COMMENT Careful follow-up and diagnosis of chest radiograph abnormalities is paramount.
Yes, it was a stroke
WEAKNESS, NUMBNESS, AND TINGLING IN HIS RIGHT ARM prompted a 56-year-old man to visit his primary care physician. The physician sent the patient to the emergency department (ED) for testing because he believed the man was experiencing stroke-like symptoms. As the patient and his wife drove to the hospital, the physician faxed the patient’s medical records to the ED.
When the patient’s wife tried to give ED employees the physician’s orders for tests and tell them of the doctor’s concern about a stroke, they told her that all the beds were full and she should sit down and wait.
The patient was eventually evaluated as a low-priority patient with numbness in his right hand. The examining doctor ordered radiographs of the right wrist and discharged the patient with a diagnosis of carpal tunnel syndrome.
Twenty minutes later, a nurse left a message telling the patient to return to the hospital for the stroke-related tests that had been ordered by his primary care physician. An ED physician other than the one who first examined the patient performed the tests—except for a test of blood flow to the brain. The physician diagnosed stroke-like symptoms and requested a consultation with another physician, which never happened. The patient was discharged about 6 hours after his first discharge.
About 16 hours later, the patient suffered a stroke. Subsequent testing revealed an obstruction in the left carotid artery. The stroke resulted in permanent neurologic injury.
PLAINTIFF’S CLAIM No information about the plaintiff’s claim is available.
THE DEFENSE The defendants denied negligence and disputed the extent of the patient’s injuries.
VERDICT $1.123 million Maryland verdict.
COMMENT Coordination of care remains critical, particularly between our outpatient offices and the busy ED.
Missed dissecting aortic aneurysm proves fatal
A 43-YEAR-OLD MAN was admitted to the hospital complaining of severe chest pain, shortness of breath, sweating, and dry mouth. After being seen by several physicians, the patient suffered an aortic dissection, which caused bleeding in the wall of the aorta, an aortic rupture, and bleeding into the pericardium. He died 2 days later.
PLAINTIFF’S CLAIM The defendants failed to order tests to rule out a dissecting aortic aneurysm and did not include aortic dissection in the differential diagnosis. They failed to provide appropriate drug therapy to decrease cardiac impulse and lower the systolic blood pressure. They did not obtain an emergency cardiac consultation or admit the patient to a cardiovascular surgical intensive care unit.
THE DEFENSE The defendants denied negligence and claimed that nothing they did or failed to do contributed to the patient’s death.
VERDICT $250,000 Michigan settlement.
COMMENT Just yesterday, a malpractice lawyer presented me with a case very similar to this one: a patient with unexplained chest pain who died of a dissecting aneurysm. Remember, not all chest pain is caused by coronary artery disease.
Too-late cancer Dx blamed on neglected x-ray findings
A LONG-TERM CIGARETTE SMOKER IN HER 50s saw a physician in 2001 for symptoms of pneumonia. The doctor prescribed antibiotics and referred her to another facility for a chest radiograph.
Five days later, she returned to the physician’s office, where she was seen by another internist in the practice. The internist noted that the chest radiograph showed parenchymal densities in the right lung. Parenchymal densities had also showed up on 2 previous chest radiographs, but were more prevalent on the latest film. The internist advised the patient to finish her antibiotic regimen; he did not prescribe further tests or treatment.
Over the following 40 months, doctors in the patient’s medical group examined her 8 times. Each time she complained of impaired respiration. The internist believed that the symptoms were caused by asthma.
In 2004, the patient was diagnosed with stage IV cancer of the right lung, which had spread to her bones and was untreatable. She died several weeks later.
PLAINTIFF’S CLAIM A proper diagnosis in 2001 would have allowed the cancer to be cured. A computed tomography scan should have been performed and a pulmonologist consulted at that time.
THE DEFENSE Findings from the radiograph from 2001 did not necessitate further action. Because the patient’s cancer had metastasized before that radiograph, treatment then (or later) would not have changed the outcome.
VERDICT $850,000 New York verdict.
COMMENT Careful follow-up and diagnosis of chest radiograph abnormalities is paramount.
Yes, it was a stroke
WEAKNESS, NUMBNESS, AND TINGLING IN HIS RIGHT ARM prompted a 56-year-old man to visit his primary care physician. The physician sent the patient to the emergency department (ED) for testing because he believed the man was experiencing stroke-like symptoms. As the patient and his wife drove to the hospital, the physician faxed the patient’s medical records to the ED.
When the patient’s wife tried to give ED employees the physician’s orders for tests and tell them of the doctor’s concern about a stroke, they told her that all the beds were full and she should sit down and wait.
The patient was eventually evaluated as a low-priority patient with numbness in his right hand. The examining doctor ordered radiographs of the right wrist and discharged the patient with a diagnosis of carpal tunnel syndrome.
Twenty minutes later, a nurse left a message telling the patient to return to the hospital for the stroke-related tests that had been ordered by his primary care physician. An ED physician other than the one who first examined the patient performed the tests—except for a test of blood flow to the brain. The physician diagnosed stroke-like symptoms and requested a consultation with another physician, which never happened. The patient was discharged about 6 hours after his first discharge.
About 16 hours later, the patient suffered a stroke. Subsequent testing revealed an obstruction in the left carotid artery. The stroke resulted in permanent neurologic injury.
PLAINTIFF’S CLAIM No information about the plaintiff’s claim is available.
THE DEFENSE The defendants denied negligence and disputed the extent of the patient’s injuries.
VERDICT $1.123 million Maryland verdict.
COMMENT Coordination of care remains critical, particularly between our outpatient offices and the busy ED.
Missed dissecting aortic aneurysm proves fatal
A 43-YEAR-OLD MAN was admitted to the hospital complaining of severe chest pain, shortness of breath, sweating, and dry mouth. After being seen by several physicians, the patient suffered an aortic dissection, which caused bleeding in the wall of the aorta, an aortic rupture, and bleeding into the pericardium. He died 2 days later.
PLAINTIFF’S CLAIM The defendants failed to order tests to rule out a dissecting aortic aneurysm and did not include aortic dissection in the differential diagnosis. They failed to provide appropriate drug therapy to decrease cardiac impulse and lower the systolic blood pressure. They did not obtain an emergency cardiac consultation or admit the patient to a cardiovascular surgical intensive care unit.
THE DEFENSE The defendants denied negligence and claimed that nothing they did or failed to do contributed to the patient’s death.
VERDICT $250,000 Michigan settlement.
COMMENT Just yesterday, a malpractice lawyer presented me with a case very similar to this one: a patient with unexplained chest pain who died of a dissecting aneurysm. Remember, not all chest pain is caused by coronary artery disease.
Too-late cancer Dx blamed on neglected x-ray findings
A LONG-TERM CIGARETTE SMOKER IN HER 50s saw a physician in 2001 for symptoms of pneumonia. The doctor prescribed antibiotics and referred her to another facility for a chest radiograph.
Five days later, she returned to the physician’s office, where she was seen by another internist in the practice. The internist noted that the chest radiograph showed parenchymal densities in the right lung. Parenchymal densities had also showed up on 2 previous chest radiographs, but were more prevalent on the latest film. The internist advised the patient to finish her antibiotic regimen; he did not prescribe further tests or treatment.
Over the following 40 months, doctors in the patient’s medical group examined her 8 times. Each time she complained of impaired respiration. The internist believed that the symptoms were caused by asthma.
In 2004, the patient was diagnosed with stage IV cancer of the right lung, which had spread to her bones and was untreatable. She died several weeks later.
PLAINTIFF’S CLAIM A proper diagnosis in 2001 would have allowed the cancer to be cured. A computed tomography scan should have been performed and a pulmonologist consulted at that time.
THE DEFENSE Findings from the radiograph from 2001 did not necessitate further action. Because the patient’s cancer had metastasized before that radiograph, treatment then (or later) would not have changed the outcome.
VERDICT $850,000 New York verdict.
COMMENT Careful follow-up and diagnosis of chest radiograph abnormalities is paramount.
Yes, it was a stroke
WEAKNESS, NUMBNESS, AND TINGLING IN HIS RIGHT ARM prompted a 56-year-old man to visit his primary care physician. The physician sent the patient to the emergency department (ED) for testing because he believed the man was experiencing stroke-like symptoms. As the patient and his wife drove to the hospital, the physician faxed the patient’s medical records to the ED.
When the patient’s wife tried to give ED employees the physician’s orders for tests and tell them of the doctor’s concern about a stroke, they told her that all the beds were full and she should sit down and wait.
The patient was eventually evaluated as a low-priority patient with numbness in his right hand. The examining doctor ordered radiographs of the right wrist and discharged the patient with a diagnosis of carpal tunnel syndrome.
Twenty minutes later, a nurse left a message telling the patient to return to the hospital for the stroke-related tests that had been ordered by his primary care physician. An ED physician other than the one who first examined the patient performed the tests—except for a test of blood flow to the brain. The physician diagnosed stroke-like symptoms and requested a consultation with another physician, which never happened. The patient was discharged about 6 hours after his first discharge.
About 16 hours later, the patient suffered a stroke. Subsequent testing revealed an obstruction in the left carotid artery. The stroke resulted in permanent neurologic injury.
PLAINTIFF’S CLAIM No information about the plaintiff’s claim is available.
THE DEFENSE The defendants denied negligence and disputed the extent of the patient’s injuries.
VERDICT $1.123 million Maryland verdict.
COMMENT Coordination of care remains critical, particularly between our outpatient offices and the busy ED.
Compartment Syndrome...
Internet Liability
Question: A doctor hopes to use his Internet skills to reach out to patients and grow his practice. He is aware of potential legal risks, but plans to institute appropriate safeguards. Which of the following statements are most accurate?
A. Saving and systematically filing e-mail messages should suffice to comply with privacy requirements.
B. Online contacts, without more, are unlikely to constitute a doctor-patient relationship, so negligence issues may not arise.
C. If you do not advise or schedule procedures online, there will be no allegations of failure to obtain informed consent.
D. Creating a for-profit Web site for general medical advice is fine so long as you shield it with a disclaimer.
E. All are incorrect.
Answer: E. In the medical context, Internet liability can be far-ranging, and what seems like prudent risk management may prove inadequate. All of the above statements are only partially correct; importantly, they may lull the practitioner into complacence and place him or her in peril for a malpractice claim. Here are some relevant terms to consider:
Medical Negligence
Legal duty is a prerequisite to a successful negligence lawsuit, so this determination is critical to the plaintiff’s case. Although not the typical office or hospital patient, a plaintiff may argue successfully that a professional doctor-patient relationship had nonetheless been formed in cyberspace. It is likely that such a relationship will be found in some circumstances. The court is likely to ask whether the doctor saw the patient or the records, or knows the patient’s name, whether there was payment and an acceptance of a request for an appointment, and whether there was ever a physical exam. The more ‘yes’ answers to these questions, the more likely the court will find the existence of a duty. If online interactions are held to offer more information-rich interaction than would the telephone, as is likely, doctors may be deemed to have constructively formed a relationship with their cyber patients, even if there had been no physical contact or real-world interaction.
Courts have ruled in favor of plaintiffs despite the absence of face-to-face interaction with a physician. In one case, a doctor speaking to a patient from the emergency department was deemed to have formed a doctor-patient relationship, and in another, an on-call neurologist’s telephone advice to the treating doctor likewise raised the issue of legal duty. The state of Hawaii recently permitted telehealth services to be reimbursable, notwithstanding the absence of face-to-face contact [HRS §431:10A-116.3(a)]. With this law, an online encounter is likely to translate into a professional relationship – with corresponding legal duty of due care.
Injured parties may allege medical malpractice for online acts or omissions. Substandard conduct includes wrong advice, untimely diagnoses and referrals, treatment errors including prescription errors, and failure to return calls or respond to electronic messages including e-mails. In the absence of face-to-face interaction, practitioners should be particularly attentive to patient complaints of abdominal or chest pain, high fever, seizures, bleeding, head injury, dyspnea, tight orthopedic casts, visual complaints, and onset of labor.
Disclaimers are regularly posted by the online doctor-adviser-consultant who hopes to avoid liability. Whether this will withstand legal scrutiny is doubtful, as courts may well find that a doctor-patient relationship had indeed been formed, especially where there is a profit motive. Some providers have chosen to produce and publish to their own Web sites. Patients go to the Internet for clinical information, and some are asking their physicians for guidance. Doctors are either providing this information on their own or directing their patients elsewhere for it. In both situations, issues arise regarding the content source, and responsibility for, and frequency of, updates. There are also potential risks of conflict of interests associated with delivery of advertising or sponsorship along with the clinical information.
Clinicians who refer their patients to online pharmacies, or agree to do so upon their request, must be aware of additional risks. The National Association of Boards of Pharmacy provides a Verified Internet Pharmacy Practice Sites (VIPPS) program that certifies pharmacies as being in compliance with standards that include critical on-site inspection and review. Such Internet pharmacies will feature a seal of approval on their home page.
Informed Consent
The most common "medical treatment" provided on the Internet involves medical advice or prescriptions, although prescriptions for controlled substances are generally disallowed by law. The physician should ascertain that the patient understands what medical advice is being proffered, including the alternatives and material risks. Claims asserting lack of informed consent are a part of virtually every malpractice lawsuit and cyber consent may yet emerge as a minefield.
Privacy and Confidentiality
Privacy and confidentiality issues cover all aspects of medical communication, including e-mail and other Internet interactions. In addition to civil suits by the aggrieved patient and/or family members, the federal Health Insurance Portability and Accountability Act imposes both civil and criminal liabilities on the health care provider who is found in violation of written standards, so conscientious adherence to privacy guidelines and procedures is paramount. Take e-mail messaging as an example. It is not as secure as one would like to believe, and doctors who use this form of communication are obligated to take all means to safeguard patient privacy and confidentiality, including the avoidance of an unauthenticated, nonencrypted, nonsecure communication network.
Question: A doctor hopes to use his Internet skills to reach out to patients and grow his practice. He is aware of potential legal risks, but plans to institute appropriate safeguards. Which of the following statements are most accurate?
A. Saving and systematically filing e-mail messages should suffice to comply with privacy requirements.
B. Online contacts, without more, are unlikely to constitute a doctor-patient relationship, so negligence issues may not arise.
C. If you do not advise or schedule procedures online, there will be no allegations of failure to obtain informed consent.
D. Creating a for-profit Web site for general medical advice is fine so long as you shield it with a disclaimer.
E. All are incorrect.
Answer: E. In the medical context, Internet liability can be far-ranging, and what seems like prudent risk management may prove inadequate. All of the above statements are only partially correct; importantly, they may lull the practitioner into complacence and place him or her in peril for a malpractice claim. Here are some relevant terms to consider:
Medical Negligence
Legal duty is a prerequisite to a successful negligence lawsuit, so this determination is critical to the plaintiff’s case. Although not the typical office or hospital patient, a plaintiff may argue successfully that a professional doctor-patient relationship had nonetheless been formed in cyberspace. It is likely that such a relationship will be found in some circumstances. The court is likely to ask whether the doctor saw the patient or the records, or knows the patient’s name, whether there was payment and an acceptance of a request for an appointment, and whether there was ever a physical exam. The more ‘yes’ answers to these questions, the more likely the court will find the existence of a duty. If online interactions are held to offer more information-rich interaction than would the telephone, as is likely, doctors may be deemed to have constructively formed a relationship with their cyber patients, even if there had been no physical contact or real-world interaction.
Courts have ruled in favor of plaintiffs despite the absence of face-to-face interaction with a physician. In one case, a doctor speaking to a patient from the emergency department was deemed to have formed a doctor-patient relationship, and in another, an on-call neurologist’s telephone advice to the treating doctor likewise raised the issue of legal duty. The state of Hawaii recently permitted telehealth services to be reimbursable, notwithstanding the absence of face-to-face contact [HRS §431:10A-116.3(a)]. With this law, an online encounter is likely to translate into a professional relationship – with corresponding legal duty of due care.
Injured parties may allege medical malpractice for online acts or omissions. Substandard conduct includes wrong advice, untimely diagnoses and referrals, treatment errors including prescription errors, and failure to return calls or respond to electronic messages including e-mails. In the absence of face-to-face interaction, practitioners should be particularly attentive to patient complaints of abdominal or chest pain, high fever, seizures, bleeding, head injury, dyspnea, tight orthopedic casts, visual complaints, and onset of labor.
Disclaimers are regularly posted by the online doctor-adviser-consultant who hopes to avoid liability. Whether this will withstand legal scrutiny is doubtful, as courts may well find that a doctor-patient relationship had indeed been formed, especially where there is a profit motive. Some providers have chosen to produce and publish to their own Web sites. Patients go to the Internet for clinical information, and some are asking their physicians for guidance. Doctors are either providing this information on their own or directing their patients elsewhere for it. In both situations, issues arise regarding the content source, and responsibility for, and frequency of, updates. There are also potential risks of conflict of interests associated with delivery of advertising or sponsorship along with the clinical information.
Clinicians who refer their patients to online pharmacies, or agree to do so upon their request, must be aware of additional risks. The National Association of Boards of Pharmacy provides a Verified Internet Pharmacy Practice Sites (VIPPS) program that certifies pharmacies as being in compliance with standards that include critical on-site inspection and review. Such Internet pharmacies will feature a seal of approval on their home page.
Informed Consent
The most common "medical treatment" provided on the Internet involves medical advice or prescriptions, although prescriptions for controlled substances are generally disallowed by law. The physician should ascertain that the patient understands what medical advice is being proffered, including the alternatives and material risks. Claims asserting lack of informed consent are a part of virtually every malpractice lawsuit and cyber consent may yet emerge as a minefield.
Privacy and Confidentiality
Privacy and confidentiality issues cover all aspects of medical communication, including e-mail and other Internet interactions. In addition to civil suits by the aggrieved patient and/or family members, the federal Health Insurance Portability and Accountability Act imposes both civil and criminal liabilities on the health care provider who is found in violation of written standards, so conscientious adherence to privacy guidelines and procedures is paramount. Take e-mail messaging as an example. It is not as secure as one would like to believe, and doctors who use this form of communication are obligated to take all means to safeguard patient privacy and confidentiality, including the avoidance of an unauthenticated, nonencrypted, nonsecure communication network.
Question: A doctor hopes to use his Internet skills to reach out to patients and grow his practice. He is aware of potential legal risks, but plans to institute appropriate safeguards. Which of the following statements are most accurate?
A. Saving and systematically filing e-mail messages should suffice to comply with privacy requirements.
B. Online contacts, without more, are unlikely to constitute a doctor-patient relationship, so negligence issues may not arise.
C. If you do not advise or schedule procedures online, there will be no allegations of failure to obtain informed consent.
D. Creating a for-profit Web site for general medical advice is fine so long as you shield it with a disclaimer.
E. All are incorrect.
Answer: E. In the medical context, Internet liability can be far-ranging, and what seems like prudent risk management may prove inadequate. All of the above statements are only partially correct; importantly, they may lull the practitioner into complacence and place him or her in peril for a malpractice claim. Here are some relevant terms to consider:
Medical Negligence
Legal duty is a prerequisite to a successful negligence lawsuit, so this determination is critical to the plaintiff’s case. Although not the typical office or hospital patient, a plaintiff may argue successfully that a professional doctor-patient relationship had nonetheless been formed in cyberspace. It is likely that such a relationship will be found in some circumstances. The court is likely to ask whether the doctor saw the patient or the records, or knows the patient’s name, whether there was payment and an acceptance of a request for an appointment, and whether there was ever a physical exam. The more ‘yes’ answers to these questions, the more likely the court will find the existence of a duty. If online interactions are held to offer more information-rich interaction than would the telephone, as is likely, doctors may be deemed to have constructively formed a relationship with their cyber patients, even if there had been no physical contact or real-world interaction.
Courts have ruled in favor of plaintiffs despite the absence of face-to-face interaction with a physician. In one case, a doctor speaking to a patient from the emergency department was deemed to have formed a doctor-patient relationship, and in another, an on-call neurologist’s telephone advice to the treating doctor likewise raised the issue of legal duty. The state of Hawaii recently permitted telehealth services to be reimbursable, notwithstanding the absence of face-to-face contact [HRS §431:10A-116.3(a)]. With this law, an online encounter is likely to translate into a professional relationship – with corresponding legal duty of due care.
Injured parties may allege medical malpractice for online acts or omissions. Substandard conduct includes wrong advice, untimely diagnoses and referrals, treatment errors including prescription errors, and failure to return calls or respond to electronic messages including e-mails. In the absence of face-to-face interaction, practitioners should be particularly attentive to patient complaints of abdominal or chest pain, high fever, seizures, bleeding, head injury, dyspnea, tight orthopedic casts, visual complaints, and onset of labor.
Disclaimers are regularly posted by the online doctor-adviser-consultant who hopes to avoid liability. Whether this will withstand legal scrutiny is doubtful, as courts may well find that a doctor-patient relationship had indeed been formed, especially where there is a profit motive. Some providers have chosen to produce and publish to their own Web sites. Patients go to the Internet for clinical information, and some are asking their physicians for guidance. Doctors are either providing this information on their own or directing their patients elsewhere for it. In both situations, issues arise regarding the content source, and responsibility for, and frequency of, updates. There are also potential risks of conflict of interests associated with delivery of advertising or sponsorship along with the clinical information.
Clinicians who refer their patients to online pharmacies, or agree to do so upon their request, must be aware of additional risks. The National Association of Boards of Pharmacy provides a Verified Internet Pharmacy Practice Sites (VIPPS) program that certifies pharmacies as being in compliance with standards that include critical on-site inspection and review. Such Internet pharmacies will feature a seal of approval on their home page.
Informed Consent
The most common "medical treatment" provided on the Internet involves medical advice or prescriptions, although prescriptions for controlled substances are generally disallowed by law. The physician should ascertain that the patient understands what medical advice is being proffered, including the alternatives and material risks. Claims asserting lack of informed consent are a part of virtually every malpractice lawsuit and cyber consent may yet emerge as a minefield.
Privacy and Confidentiality
Privacy and confidentiality issues cover all aspects of medical communication, including e-mail and other Internet interactions. In addition to civil suits by the aggrieved patient and/or family members, the federal Health Insurance Portability and Accountability Act imposes both civil and criminal liabilities on the health care provider who is found in violation of written standards, so conscientious adherence to privacy guidelines and procedures is paramount. Take e-mail messaging as an example. It is not as secure as one would like to believe, and doctors who use this form of communication are obligated to take all means to safeguard patient privacy and confidentiality, including the avoidance of an unauthenticated, nonencrypted, nonsecure communication network.
Internet Liability
Question: A doctor hopes to use his Internet skills to reach out to patients and grow his practice. He is aware of potential legal risks, but plans to institute appropriate safeguards. Which of the following statements are most accurate?
A. Saving and systematically filing e-mail messages should suffice to comply with privacy requirements.
B. Online contacts, without more, are unlikely to constitute a doctor-patient relationship, so negligence issues may not arise.
C. If you do not advise or schedule procedures online, there will be no allegations of failure to obtain informed consent.
D. Creating a for-profit Web site for general medical advice is fine so long as you shield it with a disclaimer.
E. All are incorrect.
Answer: E. In the medical context, Internet liability can be far-ranging, and what seems like prudent risk management may prove inadequate. All of the above statements are only partially correct; importantly, they may lull the practitioner into complacence and place him or her in peril for a malpractice claim. Here are some relevant terms to consider:
Medical Negligence
Legal duty is a prerequisite to a successful negligence lawsuit, so this determination is critical to the plaintiff’s case. Although not the typical office or hospital patient, a plaintiff may argue successfully that a professional doctor-patient relationship had nonetheless been formed in cyberspace. It is likely that such a relationship will be found in some circumstances. The court is likely to ask whether the doctor saw the patient or the records, or knows the patient’s name, whether there was payment and an acceptance of a request for an appointment, and whether there was ever a physical exam. The more ‘yes’ answers to these questions, the more likely the court will find the existence of a duty. If online interactions are held to offer more information-rich interaction than would the telephone, as is likely, doctors may be deemed to have constructively formed a relationship with their cyber patients, even if there had been no physical contact or real-world interaction.
Courts have ruled in favor of plaintiffs despite the absence of face-to-face interaction with a physician. In one case, a doctor speaking to a patient from the emergency department was deemed to have formed a doctor-patient relationship, and in another, an on-call neurologist’s telephone advice to the treating doctor likewise raised the issue of legal duty. The state of Hawaii recently permitted telehealth services to be reimbursable, notwithstanding the absence of face-to-face contact [HRS §431:10A-116.3(a)]. With this law, an online encounter is likely to translate into a professional relationship – with corresponding legal duty of due care.
Injured parties may allege medical malpractice for online acts or omissions. Substandard conduct includes wrong advice, untimely diagnoses and referrals, treatment errors including prescription errors, and failure to return calls or respond to electronic messages including e-mails. In the absence of face-to-face interaction, practitioners should be particularly attentive to patient complaints of abdominal or chest pain, high fever, seizures, bleeding, head injury, dyspnea, tight orthopedic casts, visual complaints, and onset of labor.
Disclaimers are regularly posted by the online doctor-adviser-consultant who hopes to avoid liability. Whether this will withstand legal scrutiny is doubtful, as courts may well find that a doctor-patient relationship had indeed been formed, especially where there is a profit motive. Some providers have chosen to produce and publish to their own Web sites. Patients go to the Internet for clinical information, and some are asking their physicians for guidance. Doctors are either providing this information on their own or directing their patients elsewhere for it. In both situations, issues arise regarding the content source, and responsibility for, and frequency of, updates. There are also potential risks of conflict of interests associated with delivery of advertising or sponsorship along with the clinical information.
Clinicians who refer their patients to online pharmacies, or agree to do so upon their request, must be aware of additional risks. The National Association of Boards of Pharmacy provides a Verified Internet Pharmacy Practice Sites (VIPPS) program that certifies pharmacies as being in compliance with standards that include critical on-site inspection and review. Such Internet pharmacies will feature a seal of approval on their home page.
Informed Consent
The most common "medical treatment" provided on the Internet involves medical advice or prescriptions, although prescriptions for controlled substances are generally disallowed by law. The physician should ascertain that the patient understands what medical advice is being proffered, including the alternatives and material risks. Claims asserting lack of informed consent are a part of virtually every malpractice lawsuit and cyber consent may yet emerge as a minefield.
Privacy and Confidentiality
Privacy and confidentiality issues cover all aspects of medical communication, including e-mail and other Internet interactions. In addition to civil suits by the aggrieved patient and/or family members, the federal Health Insurance Portability and Accountability Act imposes both civil and criminal liabilities on the health care provider who is found in violation of written standards, so conscientious adherence to privacy guidelines and procedures is paramount. Take e-mail messaging as an example. It is not as secure as one would like to believe, and doctors who use this form of communication are obligated to take all means to safeguard patient privacy and confidentiality, including the avoidance of an unauthenticated, nonencrypted, nonsecure communication network.
Question: A doctor hopes to use his Internet skills to reach out to patients and grow his practice. He is aware of potential legal risks, but plans to institute appropriate safeguards. Which of the following statements are most accurate?
A. Saving and systematically filing e-mail messages should suffice to comply with privacy requirements.
B. Online contacts, without more, are unlikely to constitute a doctor-patient relationship, so negligence issues may not arise.
C. If you do not advise or schedule procedures online, there will be no allegations of failure to obtain informed consent.
D. Creating a for-profit Web site for general medical advice is fine so long as you shield it with a disclaimer.
E. All are incorrect.
Answer: E. In the medical context, Internet liability can be far-ranging, and what seems like prudent risk management may prove inadequate. All of the above statements are only partially correct; importantly, they may lull the practitioner into complacence and place him or her in peril for a malpractice claim. Here are some relevant terms to consider:
Medical Negligence
Legal duty is a prerequisite to a successful negligence lawsuit, so this determination is critical to the plaintiff’s case. Although not the typical office or hospital patient, a plaintiff may argue successfully that a professional doctor-patient relationship had nonetheless been formed in cyberspace. It is likely that such a relationship will be found in some circumstances. The court is likely to ask whether the doctor saw the patient or the records, or knows the patient’s name, whether there was payment and an acceptance of a request for an appointment, and whether there was ever a physical exam. The more ‘yes’ answers to these questions, the more likely the court will find the existence of a duty. If online interactions are held to offer more information-rich interaction than would the telephone, as is likely, doctors may be deemed to have constructively formed a relationship with their cyber patients, even if there had been no physical contact or real-world interaction.
Courts have ruled in favor of plaintiffs despite the absence of face-to-face interaction with a physician. In one case, a doctor speaking to a patient from the emergency department was deemed to have formed a doctor-patient relationship, and in another, an on-call neurologist’s telephone advice to the treating doctor likewise raised the issue of legal duty. The state of Hawaii recently permitted telehealth services to be reimbursable, notwithstanding the absence of face-to-face contact [HRS §431:10A-116.3(a)]. With this law, an online encounter is likely to translate into a professional relationship – with corresponding legal duty of due care.
Injured parties may allege medical malpractice for online acts or omissions. Substandard conduct includes wrong advice, untimely diagnoses and referrals, treatment errors including prescription errors, and failure to return calls or respond to electronic messages including e-mails. In the absence of face-to-face interaction, practitioners should be particularly attentive to patient complaints of abdominal or chest pain, high fever, seizures, bleeding, head injury, dyspnea, tight orthopedic casts, visual complaints, and onset of labor.
Disclaimers are regularly posted by the online doctor-adviser-consultant who hopes to avoid liability. Whether this will withstand legal scrutiny is doubtful, as courts may well find that a doctor-patient relationship had indeed been formed, especially where there is a profit motive. Some providers have chosen to produce and publish to their own Web sites. Patients go to the Internet for clinical information, and some are asking their physicians for guidance. Doctors are either providing this information on their own or directing their patients elsewhere for it. In both situations, issues arise regarding the content source, and responsibility for, and frequency of, updates. There are also potential risks of conflict of interests associated with delivery of advertising or sponsorship along with the clinical information.
Clinicians who refer their patients to online pharmacies, or agree to do so upon their request, must be aware of additional risks. The National Association of Boards of Pharmacy provides a Verified Internet Pharmacy Practice Sites (VIPPS) program that certifies pharmacies as being in compliance with standards that include critical on-site inspection and review. Such Internet pharmacies will feature a seal of approval on their home page.
Informed Consent
The most common "medical treatment" provided on the Internet involves medical advice or prescriptions, although prescriptions for controlled substances are generally disallowed by law. The physician should ascertain that the patient understands what medical advice is being proffered, including the alternatives and material risks. Claims asserting lack of informed consent are a part of virtually every malpractice lawsuit and cyber consent may yet emerge as a minefield.
Privacy and Confidentiality
Privacy and confidentiality issues cover all aspects of medical communication, including e-mail and other Internet interactions. In addition to civil suits by the aggrieved patient and/or family members, the federal Health Insurance Portability and Accountability Act imposes both civil and criminal liabilities on the health care provider who is found in violation of written standards, so conscientious adherence to privacy guidelines and procedures is paramount. Take e-mail messaging as an example. It is not as secure as one would like to believe, and doctors who use this form of communication are obligated to take all means to safeguard patient privacy and confidentiality, including the avoidance of an unauthenticated, nonencrypted, nonsecure communication network.
Question: A doctor hopes to use his Internet skills to reach out to patients and grow his practice. He is aware of potential legal risks, but plans to institute appropriate safeguards. Which of the following statements are most accurate?
A. Saving and systematically filing e-mail messages should suffice to comply with privacy requirements.
B. Online contacts, without more, are unlikely to constitute a doctor-patient relationship, so negligence issues may not arise.
C. If you do not advise or schedule procedures online, there will be no allegations of failure to obtain informed consent.
D. Creating a for-profit Web site for general medical advice is fine so long as you shield it with a disclaimer.
E. All are incorrect.
Answer: E. In the medical context, Internet liability can be far-ranging, and what seems like prudent risk management may prove inadequate. All of the above statements are only partially correct; importantly, they may lull the practitioner into complacence and place him or her in peril for a malpractice claim. Here are some relevant terms to consider:
Medical Negligence
Legal duty is a prerequisite to a successful negligence lawsuit, so this determination is critical to the plaintiff’s case. Although not the typical office or hospital patient, a plaintiff may argue successfully that a professional doctor-patient relationship had nonetheless been formed in cyberspace. It is likely that such a relationship will be found in some circumstances. The court is likely to ask whether the doctor saw the patient or the records, or knows the patient’s name, whether there was payment and an acceptance of a request for an appointment, and whether there was ever a physical exam. The more ‘yes’ answers to these questions, the more likely the court will find the existence of a duty. If online interactions are held to offer more information-rich interaction than would the telephone, as is likely, doctors may be deemed to have constructively formed a relationship with their cyber patients, even if there had been no physical contact or real-world interaction.
Courts have ruled in favor of plaintiffs despite the absence of face-to-face interaction with a physician. In one case, a doctor speaking to a patient from the emergency department was deemed to have formed a doctor-patient relationship, and in another, an on-call neurologist’s telephone advice to the treating doctor likewise raised the issue of legal duty. The state of Hawaii recently permitted telehealth services to be reimbursable, notwithstanding the absence of face-to-face contact [HRS §431:10A-116.3(a)]. With this law, an online encounter is likely to translate into a professional relationship – with corresponding legal duty of due care.
Injured parties may allege medical malpractice for online acts or omissions. Substandard conduct includes wrong advice, untimely diagnoses and referrals, treatment errors including prescription errors, and failure to return calls or respond to electronic messages including e-mails. In the absence of face-to-face interaction, practitioners should be particularly attentive to patient complaints of abdominal or chest pain, high fever, seizures, bleeding, head injury, dyspnea, tight orthopedic casts, visual complaints, and onset of labor.
Disclaimers are regularly posted by the online doctor-adviser-consultant who hopes to avoid liability. Whether this will withstand legal scrutiny is doubtful, as courts may well find that a doctor-patient relationship had indeed been formed, especially where there is a profit motive. Some providers have chosen to produce and publish to their own Web sites. Patients go to the Internet for clinical information, and some are asking their physicians for guidance. Doctors are either providing this information on their own or directing their patients elsewhere for it. In both situations, issues arise regarding the content source, and responsibility for, and frequency of, updates. There are also potential risks of conflict of interests associated with delivery of advertising or sponsorship along with the clinical information.
Clinicians who refer their patients to online pharmacies, or agree to do so upon their request, must be aware of additional risks. The National Association of Boards of Pharmacy provides a Verified Internet Pharmacy Practice Sites (VIPPS) program that certifies pharmacies as being in compliance with standards that include critical on-site inspection and review. Such Internet pharmacies will feature a seal of approval on their home page.
Informed Consent
The most common "medical treatment" provided on the Internet involves medical advice or prescriptions, although prescriptions for controlled substances are generally disallowed by law. The physician should ascertain that the patient understands what medical advice is being proffered, including the alternatives and material risks. Claims asserting lack of informed consent are a part of virtually every malpractice lawsuit and cyber consent may yet emerge as a minefield.
Privacy and Confidentiality
Privacy and confidentiality issues cover all aspects of medical communication, including e-mail and other Internet interactions. In addition to civil suits by the aggrieved patient and/or family members, the federal Health Insurance Portability and Accountability Act imposes both civil and criminal liabilities on the health care provider who is found in violation of written standards, so conscientious adherence to privacy guidelines and procedures is paramount. Take e-mail messaging as an example. It is not as secure as one would like to believe, and doctors who use this form of communication are obligated to take all means to safeguard patient privacy and confidentiality, including the avoidance of an unauthenticated, nonencrypted, nonsecure communication network.
Professional Misconduct
Question: Regarding professional misconduct, which of the following choices is best?
A. The term covers a broad range of behaviors, e.g., substance abuse, fraud, and sexual misconduct, but excludes felonies that do not directly involve patients.
B. Regulating physician conduct by a state medical board is society’s only means of deterring substandard care.
C. The term is not specifically used in the American Medical Association code of ethics.
D. Professional misconduct does not include medical negligence.
E. Disciplinary board actions can include fines, loss of license, and even prison terms.
Answer: C. What constitutes professional misconduct is elusive, and the Council on Ethical and Judicial Affairs of the AMA does not use or define it. However, the term is used extensively in statutes and cases and has come to represent virtually all forms of misconduct including medical negligence and all forms of felonies, even those that have nothing to do with patient care such as income-tax evasion. In other words, one who is guilty of a crime or egregious substandard care can incur additional penalties from a state’s medical board for professional misconduct. Disciplinary actions run the gamut from censure or a warning to suspension or the loss of license. However, a state medical board cannot levy a jail term, which is the exclusive authority of a criminal court of law. Medical boards, via their disciplinary actions, regulate physician conduct, but they are not alone in this task. The tort system, through malpractice lawsuits, plays an equally important deterrent role.
Professional misconduct speaks to unprofessional behavior; it embraces medical incompetence and ethical breach. The original term, taken from an old English case, is "infamous conduct in a professional respect." The modern expression, "professional misconduct," has replaced "infamous conduct," but the definition is unchanged: "Serious misconduct judged according to the rules, written and unwritten, which govern the medical profession." The common sense definition requires that "... a practitioner has done something in pursuit of his profession which would reasonably be regarded as disgraceful or dishonorable by his professional brethren of good repute and competence."
Examples of professional misconduct are gross incompetence, sexual misconduct, overreaching or fraudulent advertising, financial conflicts of interest such as fee splitting or self-referral, academic and/or research malfeasance, felonies, and other unethical behaviors. Each state has its own statute stipulating the entire range of misconduct, which includes the category "unfit to practice." In this latter category, there is often evidence of abuse of substances like alcohol, tranquilizers, narcotics, or illicit drugs.
The AMA has laid down the most comprehensive set of norms and boundaries that govern the ethical conduct of doctors. It lists nine guidelines that cover all aspects of medical practice. Other specialty organizations have also published ethical guidelines or codes of ethics, the best known being that of the American College of Physicians. The most common disciplinary issues are sexual misconduct, substance abuse, gross medical negligence, and Medicare/Medicaid fraud. All states have special disciplinary boards to investigate and adjudicate written complaints, and they are guided by statutes that define the scope of their authority. The board’s actions can be appealed to a court of law for both procedural and substantive review.
A single act of malpractice is unlikely to end up with a guilty charge of professional misconduct, although multiple or egregious negligent acts will. Medical wrongdoing can even amount to a crime where there is proven mens rea [guilty mind], which means the presence of criminal intent. Generally, this means acting purposefully, knowingly, or with reckless disregard or gross negligence. Medicare/Medicaid fraud, which carries prison terms and monetary fines, is an example. Malpractice insurance policies will neither defend nor indemnify against criminal offenses.
Prosecution of doctors for patient injuries or death is rare – and rarely successful. For example, California failed in its attempt to prosecute two doctors for withdrawing intravenous fluids in an irreversibly comatose patient that resulted in his death. The charge was homicide, but the Court decided that under the circumstances, there was no legal duty to treat. However, there is the occasional case where a physician was convicted. In People v. Einaugler, a New York doctor was prosecuted for willful neglect and reckless endangerment because he failed to transfer a nursing home patient to a hospital in a timely fashion after he had learned of the patient’s abdominal condition that turned out to be peritonitis. He was sentenced to serve 52 weekends in a New York prison. The New York Supreme Court held that the misdemeanor of willful violation of heath laws required showing willful failure to provide treatment or care, not mere simple negligence. However, the evidence was sufficient to establish the defendant’s guilt of reckless endangerment in the second degree in connection with his failure to transfer the patient in a timely fashion.
And in an English case, an anesthesiologist was convicted of manslaughter for the death of a patient undergoing surgery for a detached retina. During surgery, the patient’s ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes. This led to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.
Medical boards are generally thought to be insufficiently vigilant over matters of professional misconduct. For one thing, there is an inexplicably wide variability in the rates of disciplinary actions. In 2007-2009, for example, Minnesota had the lowest rate of disciplinary actions per 1,000 physicians (1.07), whereas Alaska had the highest rate (7.89), some seven times higher. State rankings also change drastically from year to year without apparent good reason. For another, criminal convictions for insurance fraud and violation of controlled substances prescriptions frequently end up with only mild or modest discipline. All of this has led critics such as Public Citizen to bemoan that "Most states are not living up to their obligations to protect patients from doctors who are practicing medicine in a substandard manner."
Dr. Tan is a former professor of medicine and adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].
Question: Regarding professional misconduct, which of the following choices is best?
A. The term covers a broad range of behaviors, e.g., substance abuse, fraud, and sexual misconduct, but excludes felonies that do not directly involve patients.
B. Regulating physician conduct by a state medical board is society’s only means of deterring substandard care.
C. The term is not specifically used in the American Medical Association code of ethics.
D. Professional misconduct does not include medical negligence.
E. Disciplinary board actions can include fines, loss of license, and even prison terms.
Answer: C. What constitutes professional misconduct is elusive, and the Council on Ethical and Judicial Affairs of the AMA does not use or define it. However, the term is used extensively in statutes and cases and has come to represent virtually all forms of misconduct including medical negligence and all forms of felonies, even those that have nothing to do with patient care such as income-tax evasion. In other words, one who is guilty of a crime or egregious substandard care can incur additional penalties from a state’s medical board for professional misconduct. Disciplinary actions run the gamut from censure or a warning to suspension or the loss of license. However, a state medical board cannot levy a jail term, which is the exclusive authority of a criminal court of law. Medical boards, via their disciplinary actions, regulate physician conduct, but they are not alone in this task. The tort system, through malpractice lawsuits, plays an equally important deterrent role.
Professional misconduct speaks to unprofessional behavior; it embraces medical incompetence and ethical breach. The original term, taken from an old English case, is "infamous conduct in a professional respect." The modern expression, "professional misconduct," has replaced "infamous conduct," but the definition is unchanged: "Serious misconduct judged according to the rules, written and unwritten, which govern the medical profession." The common sense definition requires that "... a practitioner has done something in pursuit of his profession which would reasonably be regarded as disgraceful or dishonorable by his professional brethren of good repute and competence."
Examples of professional misconduct are gross incompetence, sexual misconduct, overreaching or fraudulent advertising, financial conflicts of interest such as fee splitting or self-referral, academic and/or research malfeasance, felonies, and other unethical behaviors. Each state has its own statute stipulating the entire range of misconduct, which includes the category "unfit to practice." In this latter category, there is often evidence of abuse of substances like alcohol, tranquilizers, narcotics, or illicit drugs.
The AMA has laid down the most comprehensive set of norms and boundaries that govern the ethical conduct of doctors. It lists nine guidelines that cover all aspects of medical practice. Other specialty organizations have also published ethical guidelines or codes of ethics, the best known being that of the American College of Physicians. The most common disciplinary issues are sexual misconduct, substance abuse, gross medical negligence, and Medicare/Medicaid fraud. All states have special disciplinary boards to investigate and adjudicate written complaints, and they are guided by statutes that define the scope of their authority. The board’s actions can be appealed to a court of law for both procedural and substantive review.
A single act of malpractice is unlikely to end up with a guilty charge of professional misconduct, although multiple or egregious negligent acts will. Medical wrongdoing can even amount to a crime where there is proven mens rea [guilty mind], which means the presence of criminal intent. Generally, this means acting purposefully, knowingly, or with reckless disregard or gross negligence. Medicare/Medicaid fraud, which carries prison terms and monetary fines, is an example. Malpractice insurance policies will neither defend nor indemnify against criminal offenses.
Prosecution of doctors for patient injuries or death is rare – and rarely successful. For example, California failed in its attempt to prosecute two doctors for withdrawing intravenous fluids in an irreversibly comatose patient that resulted in his death. The charge was homicide, but the Court decided that under the circumstances, there was no legal duty to treat. However, there is the occasional case where a physician was convicted. In People v. Einaugler, a New York doctor was prosecuted for willful neglect and reckless endangerment because he failed to transfer a nursing home patient to a hospital in a timely fashion after he had learned of the patient’s abdominal condition that turned out to be peritonitis. He was sentenced to serve 52 weekends in a New York prison. The New York Supreme Court held that the misdemeanor of willful violation of heath laws required showing willful failure to provide treatment or care, not mere simple negligence. However, the evidence was sufficient to establish the defendant’s guilt of reckless endangerment in the second degree in connection with his failure to transfer the patient in a timely fashion.
And in an English case, an anesthesiologist was convicted of manslaughter for the death of a patient undergoing surgery for a detached retina. During surgery, the patient’s ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes. This led to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.
Medical boards are generally thought to be insufficiently vigilant over matters of professional misconduct. For one thing, there is an inexplicably wide variability in the rates of disciplinary actions. In 2007-2009, for example, Minnesota had the lowest rate of disciplinary actions per 1,000 physicians (1.07), whereas Alaska had the highest rate (7.89), some seven times higher. State rankings also change drastically from year to year without apparent good reason. For another, criminal convictions for insurance fraud and violation of controlled substances prescriptions frequently end up with only mild or modest discipline. All of this has led critics such as Public Citizen to bemoan that "Most states are not living up to their obligations to protect patients from doctors who are practicing medicine in a substandard manner."
Dr. Tan is a former professor of medicine and adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].
Question: Regarding professional misconduct, which of the following choices is best?
A. The term covers a broad range of behaviors, e.g., substance abuse, fraud, and sexual misconduct, but excludes felonies that do not directly involve patients.
B. Regulating physician conduct by a state medical board is society’s only means of deterring substandard care.
C. The term is not specifically used in the American Medical Association code of ethics.
D. Professional misconduct does not include medical negligence.
E. Disciplinary board actions can include fines, loss of license, and even prison terms.
Answer: C. What constitutes professional misconduct is elusive, and the Council on Ethical and Judicial Affairs of the AMA does not use or define it. However, the term is used extensively in statutes and cases and has come to represent virtually all forms of misconduct including medical negligence and all forms of felonies, even those that have nothing to do with patient care such as income-tax evasion. In other words, one who is guilty of a crime or egregious substandard care can incur additional penalties from a state’s medical board for professional misconduct. Disciplinary actions run the gamut from censure or a warning to suspension or the loss of license. However, a state medical board cannot levy a jail term, which is the exclusive authority of a criminal court of law. Medical boards, via their disciplinary actions, regulate physician conduct, but they are not alone in this task. The tort system, through malpractice lawsuits, plays an equally important deterrent role.
Professional misconduct speaks to unprofessional behavior; it embraces medical incompetence and ethical breach. The original term, taken from an old English case, is "infamous conduct in a professional respect." The modern expression, "professional misconduct," has replaced "infamous conduct," but the definition is unchanged: "Serious misconduct judged according to the rules, written and unwritten, which govern the medical profession." The common sense definition requires that "... a practitioner has done something in pursuit of his profession which would reasonably be regarded as disgraceful or dishonorable by his professional brethren of good repute and competence."
Examples of professional misconduct are gross incompetence, sexual misconduct, overreaching or fraudulent advertising, financial conflicts of interest such as fee splitting or self-referral, academic and/or research malfeasance, felonies, and other unethical behaviors. Each state has its own statute stipulating the entire range of misconduct, which includes the category "unfit to practice." In this latter category, there is often evidence of abuse of substances like alcohol, tranquilizers, narcotics, or illicit drugs.
The AMA has laid down the most comprehensive set of norms and boundaries that govern the ethical conduct of doctors. It lists nine guidelines that cover all aspects of medical practice. Other specialty organizations have also published ethical guidelines or codes of ethics, the best known being that of the American College of Physicians. The most common disciplinary issues are sexual misconduct, substance abuse, gross medical negligence, and Medicare/Medicaid fraud. All states have special disciplinary boards to investigate and adjudicate written complaints, and they are guided by statutes that define the scope of their authority. The board’s actions can be appealed to a court of law for both procedural and substantive review.
A single act of malpractice is unlikely to end up with a guilty charge of professional misconduct, although multiple or egregious negligent acts will. Medical wrongdoing can even amount to a crime where there is proven mens rea [guilty mind], which means the presence of criminal intent. Generally, this means acting purposefully, knowingly, or with reckless disregard or gross negligence. Medicare/Medicaid fraud, which carries prison terms and monetary fines, is an example. Malpractice insurance policies will neither defend nor indemnify against criminal offenses.
Prosecution of doctors for patient injuries or death is rare – and rarely successful. For example, California failed in its attempt to prosecute two doctors for withdrawing intravenous fluids in an irreversibly comatose patient that resulted in his death. The charge was homicide, but the Court decided that under the circumstances, there was no legal duty to treat. However, there is the occasional case where a physician was convicted. In People v. Einaugler, a New York doctor was prosecuted for willful neglect and reckless endangerment because he failed to transfer a nursing home patient to a hospital in a timely fashion after he had learned of the patient’s abdominal condition that turned out to be peritonitis. He was sentenced to serve 52 weekends in a New York prison. The New York Supreme Court held that the misdemeanor of willful violation of heath laws required showing willful failure to provide treatment or care, not mere simple negligence. However, the evidence was sufficient to establish the defendant’s guilt of reckless endangerment in the second degree in connection with his failure to transfer the patient in a timely fashion.
And in an English case, an anesthesiologist was convicted of manslaughter for the death of a patient undergoing surgery for a detached retina. During surgery, the patient’s ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes. This led to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.
Medical boards are generally thought to be insufficiently vigilant over matters of professional misconduct. For one thing, there is an inexplicably wide variability in the rates of disciplinary actions. In 2007-2009, for example, Minnesota had the lowest rate of disciplinary actions per 1,000 physicians (1.07), whereas Alaska had the highest rate (7.89), some seven times higher. State rankings also change drastically from year to year without apparent good reason. For another, criminal convictions for insurance fraud and violation of controlled substances prescriptions frequently end up with only mild or modest discipline. All of this has led critics such as Public Citizen to bemoan that "Most states are not living up to their obligations to protect patients from doctors who are practicing medicine in a substandard manner."
Dr. Tan is a former professor of medicine and adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].
Professional Misconduct
Question: Regarding professional misconduct, which of the following choices is best?
A. The term covers a broad range of behaviors, e.g., substance abuse, fraud, and sexual misconduct, but excludes felonies that do not directly involve patients.
B. Regulating physician conduct by a state medical board is society’s only means of deterring substandard care.
C. The term is not specifically used in the American Medical Association code of ethics.
D. Professional misconduct does not include medical negligence.
E. Disciplinary board actions can include fines, loss of license, and even prison terms.
Answer: C. What constitutes professional misconduct is elusive, and the Council on Ethical and Judicial Affairs of the AMA does not use or define it. However, the term is used extensively in statutes and cases and has come to represent virtually all forms of misconduct including medical negligence and all forms of felonies, even those that have nothing to do with patient care such as income-tax evasion. In other words, one who is guilty of a crime or egregious substandard care can incur additional penalties from a state’s medical board for professional misconduct. Disciplinary actions run the gamut from censure or a warning to suspension or the loss of license. However, a state medical board cannot levy a jail term, which is the exclusive authority of a criminal court of law. Medical boards, via their disciplinary actions, regulate physician conduct, but they are not alone in this task. The tort system, through malpractice lawsuits, plays an equally important deterrent role.
Professional misconduct speaks to unprofessional behavior; it embraces medical incompetence and ethical breach. The original term, taken from an old English case, is "infamous conduct in a professional respect." The modern expression, "professional misconduct," has replaced "infamous conduct," but the definition is unchanged: "Serious misconduct judged according to the rules, written and unwritten, which govern the medical profession." The common sense definition requires that "... a practitioner has done something in pursuit of his profession which would reasonably be regarded as disgraceful or dishonorable by his professional brethren of good repute and competence."
Examples of professional misconduct are gross incompetence, sexual misconduct, overreaching or fraudulent advertising, financial conflicts of interest such as fee splitting or self-referral, academic and/or research malfeasance, felonies, and other unethical behaviors. Each state has its own statute stipulating the entire range of misconduct, which includes the category "unfit to practice." In this latter category, there is often evidence of abuse of substances like alcohol, tranquilizers, narcotics, or illicit drugs.
The AMA has laid down the most comprehensive set of norms and boundaries that govern the ethical conduct of doctors. It lists nine guidelines that cover all aspects of medical practice. Other specialty organizations have also published ethical guidelines or codes of ethics, the best known being that of the American College of Physicians. The most common disciplinary issues are sexual misconduct, substance abuse, gross medical negligence, and Medicare/Medicaid fraud. All states have special disciplinary boards to investigate and adjudicate written complaints, and they are guided by statutes that define the scope of their authority. The board’s actions can be appealed to a court of law for both procedural and substantive review.
A single act of malpractice is unlikely to end up with a guilty charge of professional misconduct, although multiple or egregious negligent acts will. Medical wrongdoing can even amount to a crime where there is proven mens rea [guilty mind], which means the presence of criminal intent. Generally, this means acting purposefully, knowingly, or with reckless disregard or gross negligence. Medicare/Medicaid fraud, which carries prison terms and monetary fines, is an example. Malpractice insurance policies will neither defend nor indemnify against criminal offenses.
Prosecution of doctors for patient injuries or death is rare – and rarely successful. For example, California failed in its attempt to prosecute two doctors for withdrawing intravenous fluids in an irreversibly comatose patient that resulted in his death. The charge was homicide, but the Court decided that under the circumstances, there was no legal duty to treat. However, there is the occasional case where a physician was convicted. In People v. Einaugler, a New York doctor was prosecuted for willful neglect and reckless endangerment because he failed to transfer a nursing home patient to a hospital in a timely fashion after he had learned of the patient’s abdominal condition that turned out to be peritonitis. He was sentenced to serve 52 weekends in a New York prison. The New York Supreme Court held that the misdemeanor of willful violation of heath laws required showing willful failure to provide treatment or care, not mere simple negligence. However, the evidence was sufficient to establish the defendant’s guilt of reckless endangerment in the second degree in connection with his failure to transfer the patient in a timely fashion.
And in an English case, an anesthesiologist was convicted of manslaughter for the death of a patient undergoing surgery for a detached retina. During surgery, the patient’s ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes. This led to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.
Medical boards are generally thought to be insufficiently vigilant over matters of professional misconduct. For one thing, there is an inexplicably wide variability in the rates of disciplinary actions. In 2007-2009, for example, Minnesota had the lowest rate of disciplinary actions per 1,000 physicians (1.07), whereas Alaska had the highest rate (7.89), some seven times higher. State rankings also change drastically from year to year without apparent good reason. For another, criminal convictions for insurance fraud and violation of controlled substances prescriptions frequently end up with only mild or modest discipline. All of this has led critics such as Public Citizen to bemoan that "Most states are not living up to their obligations to protect patients from doctors who are practicing medicine in a substandard manner."
Dr. Tan is a former professor of medicine and adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].
Question: Regarding professional misconduct, which of the following choices is best?
A. The term covers a broad range of behaviors, e.g., substance abuse, fraud, and sexual misconduct, but excludes felonies that do not directly involve patients.
B. Regulating physician conduct by a state medical board is society’s only means of deterring substandard care.
C. The term is not specifically used in the American Medical Association code of ethics.
D. Professional misconduct does not include medical negligence.
E. Disciplinary board actions can include fines, loss of license, and even prison terms.
Answer: C. What constitutes professional misconduct is elusive, and the Council on Ethical and Judicial Affairs of the AMA does not use or define it. However, the term is used extensively in statutes and cases and has come to represent virtually all forms of misconduct including medical negligence and all forms of felonies, even those that have nothing to do with patient care such as income-tax evasion. In other words, one who is guilty of a crime or egregious substandard care can incur additional penalties from a state’s medical board for professional misconduct. Disciplinary actions run the gamut from censure or a warning to suspension or the loss of license. However, a state medical board cannot levy a jail term, which is the exclusive authority of a criminal court of law. Medical boards, via their disciplinary actions, regulate physician conduct, but they are not alone in this task. The tort system, through malpractice lawsuits, plays an equally important deterrent role.
Professional misconduct speaks to unprofessional behavior; it embraces medical incompetence and ethical breach. The original term, taken from an old English case, is "infamous conduct in a professional respect." The modern expression, "professional misconduct," has replaced "infamous conduct," but the definition is unchanged: "Serious misconduct judged according to the rules, written and unwritten, which govern the medical profession." The common sense definition requires that "... a practitioner has done something in pursuit of his profession which would reasonably be regarded as disgraceful or dishonorable by his professional brethren of good repute and competence."
Examples of professional misconduct are gross incompetence, sexual misconduct, overreaching or fraudulent advertising, financial conflicts of interest such as fee splitting or self-referral, academic and/or research malfeasance, felonies, and other unethical behaviors. Each state has its own statute stipulating the entire range of misconduct, which includes the category "unfit to practice." In this latter category, there is often evidence of abuse of substances like alcohol, tranquilizers, narcotics, or illicit drugs.
The AMA has laid down the most comprehensive set of norms and boundaries that govern the ethical conduct of doctors. It lists nine guidelines that cover all aspects of medical practice. Other specialty organizations have also published ethical guidelines or codes of ethics, the best known being that of the American College of Physicians. The most common disciplinary issues are sexual misconduct, substance abuse, gross medical negligence, and Medicare/Medicaid fraud. All states have special disciplinary boards to investigate and adjudicate written complaints, and they are guided by statutes that define the scope of their authority. The board’s actions can be appealed to a court of law for both procedural and substantive review.
A single act of malpractice is unlikely to end up with a guilty charge of professional misconduct, although multiple or egregious negligent acts will. Medical wrongdoing can even amount to a crime where there is proven mens rea [guilty mind], which means the presence of criminal intent. Generally, this means acting purposefully, knowingly, or with reckless disregard or gross negligence. Medicare/Medicaid fraud, which carries prison terms and monetary fines, is an example. Malpractice insurance policies will neither defend nor indemnify against criminal offenses.
Prosecution of doctors for patient injuries or death is rare – and rarely successful. For example, California failed in its attempt to prosecute two doctors for withdrawing intravenous fluids in an irreversibly comatose patient that resulted in his death. The charge was homicide, but the Court decided that under the circumstances, there was no legal duty to treat. However, there is the occasional case where a physician was convicted. In People v. Einaugler, a New York doctor was prosecuted for willful neglect and reckless endangerment because he failed to transfer a nursing home patient to a hospital in a timely fashion after he had learned of the patient’s abdominal condition that turned out to be peritonitis. He was sentenced to serve 52 weekends in a New York prison. The New York Supreme Court held that the misdemeanor of willful violation of heath laws required showing willful failure to provide treatment or care, not mere simple negligence. However, the evidence was sufficient to establish the defendant’s guilt of reckless endangerment in the second degree in connection with his failure to transfer the patient in a timely fashion.
And in an English case, an anesthesiologist was convicted of manslaughter for the death of a patient undergoing surgery for a detached retina. During surgery, the patient’s ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes. This led to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.
Medical boards are generally thought to be insufficiently vigilant over matters of professional misconduct. For one thing, there is an inexplicably wide variability in the rates of disciplinary actions. In 2007-2009, for example, Minnesota had the lowest rate of disciplinary actions per 1,000 physicians (1.07), whereas Alaska had the highest rate (7.89), some seven times higher. State rankings also change drastically from year to year without apparent good reason. For another, criminal convictions for insurance fraud and violation of controlled substances prescriptions frequently end up with only mild or modest discipline. All of this has led critics such as Public Citizen to bemoan that "Most states are not living up to their obligations to protect patients from doctors who are practicing medicine in a substandard manner."
Dr. Tan is a former professor of medicine and adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].
Question: Regarding professional misconduct, which of the following choices is best?
A. The term covers a broad range of behaviors, e.g., substance abuse, fraud, and sexual misconduct, but excludes felonies that do not directly involve patients.
B. Regulating physician conduct by a state medical board is society’s only means of deterring substandard care.
C. The term is not specifically used in the American Medical Association code of ethics.
D. Professional misconduct does not include medical negligence.
E. Disciplinary board actions can include fines, loss of license, and even prison terms.
Answer: C. What constitutes professional misconduct is elusive, and the Council on Ethical and Judicial Affairs of the AMA does not use or define it. However, the term is used extensively in statutes and cases and has come to represent virtually all forms of misconduct including medical negligence and all forms of felonies, even those that have nothing to do with patient care such as income-tax evasion. In other words, one who is guilty of a crime or egregious substandard care can incur additional penalties from a state’s medical board for professional misconduct. Disciplinary actions run the gamut from censure or a warning to suspension or the loss of license. However, a state medical board cannot levy a jail term, which is the exclusive authority of a criminal court of law. Medical boards, via their disciplinary actions, regulate physician conduct, but they are not alone in this task. The tort system, through malpractice lawsuits, plays an equally important deterrent role.
Professional misconduct speaks to unprofessional behavior; it embraces medical incompetence and ethical breach. The original term, taken from an old English case, is "infamous conduct in a professional respect." The modern expression, "professional misconduct," has replaced "infamous conduct," but the definition is unchanged: "Serious misconduct judged according to the rules, written and unwritten, which govern the medical profession." The common sense definition requires that "... a practitioner has done something in pursuit of his profession which would reasonably be regarded as disgraceful or dishonorable by his professional brethren of good repute and competence."
Examples of professional misconduct are gross incompetence, sexual misconduct, overreaching or fraudulent advertising, financial conflicts of interest such as fee splitting or self-referral, academic and/or research malfeasance, felonies, and other unethical behaviors. Each state has its own statute stipulating the entire range of misconduct, which includes the category "unfit to practice." In this latter category, there is often evidence of abuse of substances like alcohol, tranquilizers, narcotics, or illicit drugs.
The AMA has laid down the most comprehensive set of norms and boundaries that govern the ethical conduct of doctors. It lists nine guidelines that cover all aspects of medical practice. Other specialty organizations have also published ethical guidelines or codes of ethics, the best known being that of the American College of Physicians. The most common disciplinary issues are sexual misconduct, substance abuse, gross medical negligence, and Medicare/Medicaid fraud. All states have special disciplinary boards to investigate and adjudicate written complaints, and they are guided by statutes that define the scope of their authority. The board’s actions can be appealed to a court of law for both procedural and substantive review.
A single act of malpractice is unlikely to end up with a guilty charge of professional misconduct, although multiple or egregious negligent acts will. Medical wrongdoing can even amount to a crime where there is proven mens rea [guilty mind], which means the presence of criminal intent. Generally, this means acting purposefully, knowingly, or with reckless disregard or gross negligence. Medicare/Medicaid fraud, which carries prison terms and monetary fines, is an example. Malpractice insurance policies will neither defend nor indemnify against criminal offenses.
Prosecution of doctors for patient injuries or death is rare – and rarely successful. For example, California failed in its attempt to prosecute two doctors for withdrawing intravenous fluids in an irreversibly comatose patient that resulted in his death. The charge was homicide, but the Court decided that under the circumstances, there was no legal duty to treat. However, there is the occasional case where a physician was convicted. In People v. Einaugler, a New York doctor was prosecuted for willful neglect and reckless endangerment because he failed to transfer a nursing home patient to a hospital in a timely fashion after he had learned of the patient’s abdominal condition that turned out to be peritonitis. He was sentenced to serve 52 weekends in a New York prison. The New York Supreme Court held that the misdemeanor of willful violation of heath laws required showing willful failure to provide treatment or care, not mere simple negligence. However, the evidence was sufficient to establish the defendant’s guilt of reckless endangerment in the second degree in connection with his failure to transfer the patient in a timely fashion.
And in an English case, an anesthesiologist was convicted of manslaughter for the death of a patient undergoing surgery for a detached retina. During surgery, the patient’s ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes. This led to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.
Medical boards are generally thought to be insufficiently vigilant over matters of professional misconduct. For one thing, there is an inexplicably wide variability in the rates of disciplinary actions. In 2007-2009, for example, Minnesota had the lowest rate of disciplinary actions per 1,000 physicians (1.07), whereas Alaska had the highest rate (7.89), some seven times higher. State rankings also change drastically from year to year without apparent good reason. For another, criminal convictions for insurance fraud and violation of controlled substances prescriptions frequently end up with only mild or modest discipline. All of this has led critics such as Public Citizen to bemoan that "Most states are not living up to their obligations to protect patients from doctors who are practicing medicine in a substandard manner."
Dr. Tan is a former professor of medicine and adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].
Alleged violation of EMTALA...
Failure to monitor INR leads to severe bleeding, disability ... Rash and hives not taken seriously enough ... More
Failure to monitor INR leads to severe bleeding, disability
A MAN WITH A HISTORY OF DEEP VEIN THROMBOSIS was taking warfarin 10 mg every even day and 7.5 mg every odd day. His physician changed the warfarin dosage while the patient was taking ciprofloxacin, then resumed the original regimen once the patient finished taking the antibiotic.
No new prescriptions were written to confirm the change nor, the patient claimed, was a proper explanation of the new regimen provided. His international normalized ratio (INR) wasn’t checked after the dosage change.
After 2 weeks on the new warfarin dosage, the patient went to the emergency department (ED) complaining of groin pain and a change in urine color. Urinalysis found red blood cells too numerous to count. Although the patient told the ED staff he was taking warfarin, they didn’t check his INR. He was given a diagnosis of urinary tract infection (UTI) and discharged.
Three days later, the patient returned to the ED because of increased bleeding from his Foley catheter. Once again his INR wasn’t checked and he was discharged with a UTI diagnosis and a prescription for antibiotics. Two days afterwards, he was taken back to the hospital bleeding from all orifices. His INR was 75.
The patient spent a month in the hospital, most of it in the intensive care unit, followed by 3 months in a rehabilitation facility before returning home. He remained confined to a hospital bed.
PLAINTIFF’S CLAIM The physician and hospital were negligent for failing to instruct the patient regarding the change in warfarin dosage and neglecting to check his INR.
THE DEFENSE No information about the defense is available.
VERDICT $700,000 Maryland settlement.
COMMENT The management of anticoagulation has numerous pitfalls for the unwary. Careful monitoring can save lives—and lawsuits.
Rash and hives not taken seriously enough
A HISTORY OF 3 SEIZURES in a 7-year-old boy prompted a neurologist to prescribe valproic acid. The neurologist later added lamotrigine because of the child’s behavior problems. After taking both medications for 2 weeks, the child developed a rash, at which point the neurologist discontinued the lamotrigine and started diphenhydramine.
The following day, the child was brought to the ED with an itchy rash and hives on his torso and extremities. An allergic reaction was diagnosed and the child was discharged with instructions to take diphenhydramine along with acetaminophen and ibuprofen as needed. When informed of the ED visit, the neurologist requested a follow-up appointment in 4 weeks.
Two days later, the child was back in the ED because the rash had progressed to include redness and swelling of the face. Once again, he was discharged with a diagnosis of allergic reaction and instructions to take diphenhydramine and acetaminophen.
Two days afterward, the child was taken to a different ED, from which he was airlifted to a tertiary care center and admitted to the intensive care unit for treatment of Stevens-Johnson syndrome. The condition advanced to toxic epidermal necrolysis with sloughing of skin and the lining of the gastrointestinal tract. Several weeks later, the child died.
PLAINTIFF’S CLAIM The neurologist was negligent in prescribing lamotrigine for the behavior problem instead of referring the boy to a child psychologist. The lamotrigine dosage was excessive; the neurologist didn’t respond properly to the report of a rash.
The pharmacist was negligent in failing to contact the neurologist to discuss the excessive dosage. Discharging the child from the ED with a life-threatening drug reaction was unreasonable.
THE DEFENSE The defendants denied that they were negligent or caused the child’s death. They were prepared to present the histories of the parents, whose backgrounds included drug abuse, and state investigations regarding the care of the child.
VERDICT $1.55 million Washington settlement.
COMMENT When prescribing a drug with a potentially serious adverse effect, it’s always prudent to document patient education and follow-up thoroughly. Even though hindsight is 20/20, an “allergic reaction” in a patient on lamotrigine should raise red flags.
Delay in spotting compartment syndrome has permanent consequences
SEVERE NUMBNESS, TINGLING, AND PAIN IN HER LEFT CALF brought a 20-year-old woman to the ED. She couldn’t lift her left foot or bear weight on her left foot or leg. She reported awakening with the symptoms after a New Year’s Eve party the previous evening. After an examination, but no tests, she was discharged with a diagnosis of “floppy foot syndrome” and a prescription for a non-narcotic pain medication.
The young woman went to another ED the next day, complaining of continued pain and swelling in her left calf. She was admitted to the hospital for an orthopedic consultation, which resulted in a diagnosis of compartment syndrome. By that time, the patient had gone into renal failure from rhabdomyolysis caused by tissue breakdown. She underwent a fasciotomy, after which she required hemodialysis (until her kidney function returned) and rehabilitation. Damage to the nerves of her left calf and leg left her with permanent foot drop.
PLAINTIFF’S CLAIM The hospital was negligent in failing to diagnose compartment syndrome when the woman went to the ED. Proper diagnosis and treatment at that time would have prevented the nerve damage and foot drop.
THE DEFENSE No information about the defense is available.
VERDICT $750,000 Maryland settlement.
COMMENT Compartment syndrome can be challenging to recognize. Recently I have come across several allegations of malpractice for untimely diagnosis. Remember this important problem when faced with a patient with leg pain.
Multiple errors end in death from pneumonia
A 24-YEAR-OLD MAN WITH CHEST PAIN AND A COUGH went to his physician, who diagnosed chest wall pain and prescribed a narcotic pain reliever. The young man returned the next day complaining of increased chest pain. He said he’d been spitting up blood-stained sputum. He was perspiring and vomited in the doctor’s waiting room. The doctor diagnosed an upper respiratory infection and prescribed a cough syrup containing more narcotics.
Later that day the patient had a radiograph at a hospital. It revealed pneumonia. Shortly afterward, the hospital confirmed by fax with the doctor’s office that the doctor had received the results. The doctor didn’t read the radiograph results for 2 days.
After the doctor read the radiograph report, his office tried to contact the patient but misdialed his phone number, then made no further attempts at contact. The patient’s former wife found him at home unresponsive. He was admitted to the ED, where he died of pneumonia shortly thereafter.
PLAINTIFF’S CLAIM No information about the plaintiff’s claim is available.
THE DEFENSE No information about the defense is available.
VERDICT $1.85 million net verdict in Virginia.
COMMENT A cascade of mistakes (sometimes referred to as the Swiss cheese effect) occurs, and a preventable death results. Are you at risk for such an event? What fail-safe measures do you have in place in your practice?
Failure to monitor INR leads to severe bleeding, disability
A MAN WITH A HISTORY OF DEEP VEIN THROMBOSIS was taking warfarin 10 mg every even day and 7.5 mg every odd day. His physician changed the warfarin dosage while the patient was taking ciprofloxacin, then resumed the original regimen once the patient finished taking the antibiotic.
No new prescriptions were written to confirm the change nor, the patient claimed, was a proper explanation of the new regimen provided. His international normalized ratio (INR) wasn’t checked after the dosage change.
After 2 weeks on the new warfarin dosage, the patient went to the emergency department (ED) complaining of groin pain and a change in urine color. Urinalysis found red blood cells too numerous to count. Although the patient told the ED staff he was taking warfarin, they didn’t check his INR. He was given a diagnosis of urinary tract infection (UTI) and discharged.
Three days later, the patient returned to the ED because of increased bleeding from his Foley catheter. Once again his INR wasn’t checked and he was discharged with a UTI diagnosis and a prescription for antibiotics. Two days afterwards, he was taken back to the hospital bleeding from all orifices. His INR was 75.
The patient spent a month in the hospital, most of it in the intensive care unit, followed by 3 months in a rehabilitation facility before returning home. He remained confined to a hospital bed.
PLAINTIFF’S CLAIM The physician and hospital were negligent for failing to instruct the patient regarding the change in warfarin dosage and neglecting to check his INR.
THE DEFENSE No information about the defense is available.
VERDICT $700,000 Maryland settlement.
COMMENT The management of anticoagulation has numerous pitfalls for the unwary. Careful monitoring can save lives—and lawsuits.
Rash and hives not taken seriously enough
A HISTORY OF 3 SEIZURES in a 7-year-old boy prompted a neurologist to prescribe valproic acid. The neurologist later added lamotrigine because of the child’s behavior problems. After taking both medications for 2 weeks, the child developed a rash, at which point the neurologist discontinued the lamotrigine and started diphenhydramine.
The following day, the child was brought to the ED with an itchy rash and hives on his torso and extremities. An allergic reaction was diagnosed and the child was discharged with instructions to take diphenhydramine along with acetaminophen and ibuprofen as needed. When informed of the ED visit, the neurologist requested a follow-up appointment in 4 weeks.
Two days later, the child was back in the ED because the rash had progressed to include redness and swelling of the face. Once again, he was discharged with a diagnosis of allergic reaction and instructions to take diphenhydramine and acetaminophen.
Two days afterward, the child was taken to a different ED, from which he was airlifted to a tertiary care center and admitted to the intensive care unit for treatment of Stevens-Johnson syndrome. The condition advanced to toxic epidermal necrolysis with sloughing of skin and the lining of the gastrointestinal tract. Several weeks later, the child died.
PLAINTIFF’S CLAIM The neurologist was negligent in prescribing lamotrigine for the behavior problem instead of referring the boy to a child psychologist. The lamotrigine dosage was excessive; the neurologist didn’t respond properly to the report of a rash.
The pharmacist was negligent in failing to contact the neurologist to discuss the excessive dosage. Discharging the child from the ED with a life-threatening drug reaction was unreasonable.
THE DEFENSE The defendants denied that they were negligent or caused the child’s death. They were prepared to present the histories of the parents, whose backgrounds included drug abuse, and state investigations regarding the care of the child.
VERDICT $1.55 million Washington settlement.
COMMENT When prescribing a drug with a potentially serious adverse effect, it’s always prudent to document patient education and follow-up thoroughly. Even though hindsight is 20/20, an “allergic reaction” in a patient on lamotrigine should raise red flags.
Delay in spotting compartment syndrome has permanent consequences
SEVERE NUMBNESS, TINGLING, AND PAIN IN HER LEFT CALF brought a 20-year-old woman to the ED. She couldn’t lift her left foot or bear weight on her left foot or leg. She reported awakening with the symptoms after a New Year’s Eve party the previous evening. After an examination, but no tests, she was discharged with a diagnosis of “floppy foot syndrome” and a prescription for a non-narcotic pain medication.
The young woman went to another ED the next day, complaining of continued pain and swelling in her left calf. She was admitted to the hospital for an orthopedic consultation, which resulted in a diagnosis of compartment syndrome. By that time, the patient had gone into renal failure from rhabdomyolysis caused by tissue breakdown. She underwent a fasciotomy, after which she required hemodialysis (until her kidney function returned) and rehabilitation. Damage to the nerves of her left calf and leg left her with permanent foot drop.
PLAINTIFF’S CLAIM The hospital was negligent in failing to diagnose compartment syndrome when the woman went to the ED. Proper diagnosis and treatment at that time would have prevented the nerve damage and foot drop.
THE DEFENSE No information about the defense is available.
VERDICT $750,000 Maryland settlement.
COMMENT Compartment syndrome can be challenging to recognize. Recently I have come across several allegations of malpractice for untimely diagnosis. Remember this important problem when faced with a patient with leg pain.
Multiple errors end in death from pneumonia
A 24-YEAR-OLD MAN WITH CHEST PAIN AND A COUGH went to his physician, who diagnosed chest wall pain and prescribed a narcotic pain reliever. The young man returned the next day complaining of increased chest pain. He said he’d been spitting up blood-stained sputum. He was perspiring and vomited in the doctor’s waiting room. The doctor diagnosed an upper respiratory infection and prescribed a cough syrup containing more narcotics.
Later that day the patient had a radiograph at a hospital. It revealed pneumonia. Shortly afterward, the hospital confirmed by fax with the doctor’s office that the doctor had received the results. The doctor didn’t read the radiograph results for 2 days.
After the doctor read the radiograph report, his office tried to contact the patient but misdialed his phone number, then made no further attempts at contact. The patient’s former wife found him at home unresponsive. He was admitted to the ED, where he died of pneumonia shortly thereafter.
PLAINTIFF’S CLAIM No information about the plaintiff’s claim is available.
THE DEFENSE No information about the defense is available.
VERDICT $1.85 million net verdict in Virginia.
COMMENT A cascade of mistakes (sometimes referred to as the Swiss cheese effect) occurs, and a preventable death results. Are you at risk for such an event? What fail-safe measures do you have in place in your practice?
Failure to monitor INR leads to severe bleeding, disability
A MAN WITH A HISTORY OF DEEP VEIN THROMBOSIS was taking warfarin 10 mg every even day and 7.5 mg every odd day. His physician changed the warfarin dosage while the patient was taking ciprofloxacin, then resumed the original regimen once the patient finished taking the antibiotic.
No new prescriptions were written to confirm the change nor, the patient claimed, was a proper explanation of the new regimen provided. His international normalized ratio (INR) wasn’t checked after the dosage change.
After 2 weeks on the new warfarin dosage, the patient went to the emergency department (ED) complaining of groin pain and a change in urine color. Urinalysis found red blood cells too numerous to count. Although the patient told the ED staff he was taking warfarin, they didn’t check his INR. He was given a diagnosis of urinary tract infection (UTI) and discharged.
Three days later, the patient returned to the ED because of increased bleeding from his Foley catheter. Once again his INR wasn’t checked and he was discharged with a UTI diagnosis and a prescription for antibiotics. Two days afterwards, he was taken back to the hospital bleeding from all orifices. His INR was 75.
The patient spent a month in the hospital, most of it in the intensive care unit, followed by 3 months in a rehabilitation facility before returning home. He remained confined to a hospital bed.
PLAINTIFF’S CLAIM The physician and hospital were negligent for failing to instruct the patient regarding the change in warfarin dosage and neglecting to check his INR.
THE DEFENSE No information about the defense is available.
VERDICT $700,000 Maryland settlement.
COMMENT The management of anticoagulation has numerous pitfalls for the unwary. Careful monitoring can save lives—and lawsuits.
Rash and hives not taken seriously enough
A HISTORY OF 3 SEIZURES in a 7-year-old boy prompted a neurologist to prescribe valproic acid. The neurologist later added lamotrigine because of the child’s behavior problems. After taking both medications for 2 weeks, the child developed a rash, at which point the neurologist discontinued the lamotrigine and started diphenhydramine.
The following day, the child was brought to the ED with an itchy rash and hives on his torso and extremities. An allergic reaction was diagnosed and the child was discharged with instructions to take diphenhydramine along with acetaminophen and ibuprofen as needed. When informed of the ED visit, the neurologist requested a follow-up appointment in 4 weeks.
Two days later, the child was back in the ED because the rash had progressed to include redness and swelling of the face. Once again, he was discharged with a diagnosis of allergic reaction and instructions to take diphenhydramine and acetaminophen.
Two days afterward, the child was taken to a different ED, from which he was airlifted to a tertiary care center and admitted to the intensive care unit for treatment of Stevens-Johnson syndrome. The condition advanced to toxic epidermal necrolysis with sloughing of skin and the lining of the gastrointestinal tract. Several weeks later, the child died.
PLAINTIFF’S CLAIM The neurologist was negligent in prescribing lamotrigine for the behavior problem instead of referring the boy to a child psychologist. The lamotrigine dosage was excessive; the neurologist didn’t respond properly to the report of a rash.
The pharmacist was negligent in failing to contact the neurologist to discuss the excessive dosage. Discharging the child from the ED with a life-threatening drug reaction was unreasonable.
THE DEFENSE The defendants denied that they were negligent or caused the child’s death. They were prepared to present the histories of the parents, whose backgrounds included drug abuse, and state investigations regarding the care of the child.
VERDICT $1.55 million Washington settlement.
COMMENT When prescribing a drug with a potentially serious adverse effect, it’s always prudent to document patient education and follow-up thoroughly. Even though hindsight is 20/20, an “allergic reaction” in a patient on lamotrigine should raise red flags.
Delay in spotting compartment syndrome has permanent consequences
SEVERE NUMBNESS, TINGLING, AND PAIN IN HER LEFT CALF brought a 20-year-old woman to the ED. She couldn’t lift her left foot or bear weight on her left foot or leg. She reported awakening with the symptoms after a New Year’s Eve party the previous evening. After an examination, but no tests, she was discharged with a diagnosis of “floppy foot syndrome” and a prescription for a non-narcotic pain medication.
The young woman went to another ED the next day, complaining of continued pain and swelling in her left calf. She was admitted to the hospital for an orthopedic consultation, which resulted in a diagnosis of compartment syndrome. By that time, the patient had gone into renal failure from rhabdomyolysis caused by tissue breakdown. She underwent a fasciotomy, after which she required hemodialysis (until her kidney function returned) and rehabilitation. Damage to the nerves of her left calf and leg left her with permanent foot drop.
PLAINTIFF’S CLAIM The hospital was negligent in failing to diagnose compartment syndrome when the woman went to the ED. Proper diagnosis and treatment at that time would have prevented the nerve damage and foot drop.
THE DEFENSE No information about the defense is available.
VERDICT $750,000 Maryland settlement.
COMMENT Compartment syndrome can be challenging to recognize. Recently I have come across several allegations of malpractice for untimely diagnosis. Remember this important problem when faced with a patient with leg pain.
Multiple errors end in death from pneumonia
A 24-YEAR-OLD MAN WITH CHEST PAIN AND A COUGH went to his physician, who diagnosed chest wall pain and prescribed a narcotic pain reliever. The young man returned the next day complaining of increased chest pain. He said he’d been spitting up blood-stained sputum. He was perspiring and vomited in the doctor’s waiting room. The doctor diagnosed an upper respiratory infection and prescribed a cough syrup containing more narcotics.
Later that day the patient had a radiograph at a hospital. It revealed pneumonia. Shortly afterward, the hospital confirmed by fax with the doctor’s office that the doctor had received the results. The doctor didn’t read the radiograph results for 2 days.
After the doctor read the radiograph report, his office tried to contact the patient but misdialed his phone number, then made no further attempts at contact. The patient’s former wife found him at home unresponsive. He was admitted to the ED, where he died of pneumonia shortly thereafter.
PLAINTIFF’S CLAIM No information about the plaintiff’s claim is available.
THE DEFENSE No information about the defense is available.
VERDICT $1.85 million net verdict in Virginia.
COMMENT A cascade of mistakes (sometimes referred to as the Swiss cheese effect) occurs, and a preventable death results. Are you at risk for such an event? What fail-safe measures do you have in place in your practice?
Cardiac Work-Up...
No tests ordered, despite baby's yellowing skin ... Amputation blamed on tardy Dx of compartment syndrome
No tests ordered, despite baby’s yellowing skin
Many studies suggest that our ability to judge bilirubin levels on the basis of skin color is rather limited.
A 5-DAY-OLD INFANT’S YELLOW COMPLEXION led his worried mother to take him to a family practice. The physician assistant (PA) who examined the child noted yellowing of his face and chest. When the baby’s doctor arrived at the office unexpectedly, the PA consulted with her. The mother was given standard infant care instructions; no orders for diagnostic testing were issued.
Two days later the baby’s skin became yellower and he appeared lethargic. His mother brought him to a clinic, where she was told to take him to the hospital immediately. Testing at the hospital revealed an elevated bilirubin level. The infant developed kernicterus and suffered brain damage, resulting in developmental delays and cerebral palsy.
PLAINTIFF’S CLAIM The physician was negligent in failing to test and treat the infant promptly. The mother claimed that the physician had treated her older son for jaundice, as well. The mother also claimed that the physician noted the infant’s skin color but did nothing.
THE DEFENSE The infant’s sclera were white and he was alert and active when examined. The mother didn’t follow the instructions given to her.
VERDICT $6.25 million Delaware verdict.
COMMENT Many studies suggest that our ability to judge bilirubin levels on the basis of skin color is rather limited. It’s hard to imagine not doing a simple test in this situation.
Amputation blamed on tardy Dx of compartment syndrome
PAIN IN HER RIGHT LEG AND KNEE prompted a woman in her 60s to go to the emergency department (ED). She couldn’t remember any specific event or trauma that might have triggered the pain. Her history included deep vein thrombosis, pulmonary embolism, diabetes, hypertension, placement of a Green-field filter, and right knee replacement. She was taking warfarin; her international normalized ratio (INR) in the ED was 5.0. A physician diagnosed joint effusion and sent the patient home on pain killers.
Two days later, the patient returned to the ED complaining of numbness in her leg and excruciating pain in her right calf. She was seen by a different physician, who ordered a surgical consultation. Evaluation revealed a lack of sensation in her right foot, a dorsalis pedis pulse undetectable by Doppler ultrasound, and inability to dorsiflex or plantarflex the right foot.
Compartment syndrome was diagnosed and an emergent fasciotomy performed. The patient suffered extensive muscle and tissue death and became septic, necessitating an above-knee amputation. While recuperating and waiting for a prosthesis, the patient fell from her wheelchair, fracturing her dominant arm and shoulder in several places.
PLAINTIFF’S CLAIM No information about the plaintiff‘s claim is available.
THE DEFENSE No information about the defense is available.
VERDICT $890,000 Virginia settlement.
COMMENT When the diagnosis is ambiguous, close follow-up and reevaluation is key to avoiding a hefty settlement.
Abnormal labs go unnoted, patient goes into septic shock
A 52-YEAR-OLD WOMAN went to the ED because of vomiting and weakness. Her fingers and toes were blue; she was tachycardic and hypotensive. A pacemaker/defibrillator had been implanted 3 weeks earlier. The woman’s history included cardiomyopathy, eczema, renal failure, and lumbar fusion requiring maintenance narcotic medication. When initial blood tests showed hypokalemia, she was given potassium and general fluid resuscitation.
The ED physician also ordered a complete blood count, which automatically included differential and band counts. The patient’s bands were high and her platelets low, but these results weren’t noted.
The patient improved after receiving fluids; her longtime physician admitted her to the hospital with a diagnosis of hypokalemia and narcotic withdrawal. He ordered repeat blood work for the following morning.
That evening, another doctor, who was covering for the patient’s physician, received calls from nurses reporting that the patient was complaining of increased pain in her extremities. He diagnosed Raynaud’s syndrome and ordered medication. The patient’s physician also diagnosed Raynaud’s syndrome when he saw her the next morning; he noted that she was improving and ordered her diet to resume. The results from the second CBC, performed that morning, weren’t noted in the patient’s chart.
The covering doctor was on duty again in the evening and again received calls reporting that the patient was in pain. The following morning the patient went into septic shock. She was diagnosed with a staph infection and transferred to the ICU, where she died of sepsis and multi-organ failure a few days later.
PLAINTIFF’S CLAIM The doctors and nurses were negligent in failing to note the abnormal band and platelet counts for 44 hours. The physicians should have recognized signs and symptoms of infection and administered antibiotics. The hospital should have reported the laboratory results and findings of infection to the physicians.
THE DEFENSE The patient’s physician maintained that the patient’s signs and symptoms weren’t consistent with infection. He didn’t order a differential blood test and wasn’t aware that the hospital performed it automatically. He claimed that the results weren’t available to him on the first 2 days; the hospital and nurses claimed that the results were available.
The covering doctor argued that he was only the on-call physician, never actually saw the patient, and had no duty to follow up on the blood tests. The hospital maintained that the nurses had no duty to look at the laboratory results unless requested to do so and that the physicians hadn’t asked them to do so.
VERDICT $500,000 Illinois verdict against the patient’s physician; high/low agreement of $3 million/$150,000 between plaintiff and hospital ($150,000 to be set off from the verdict against the physician).
COMMENT If a test is ordered, review it promptly. Ignorance is unlikely to be an adequate defense in a malpractice allegation.
Infection, then rapid death
HIGH FEVER, DIARRHEA, LETHARGY, SPREADING RASH, and other symptoms in a 16-month-old boy led to an ED visit. The child died about 3 hours later from meningococcemia and sepsis caused by Neisseria meningitidis (Waterhouse-Friderichsen syndrome).
PLAINTIFFS’ CLAIM The ED physician failed to properly monitor and treat the child’s deteriorating condition from meningococcemia and septic shock.
THE DEFENSE The child received proper treatment, but his condition was too far advanced to prevent his death.
VERDICT Illinois defense verdict.
COMMENT Urgent evaluation and treatment—even today—can be imperative to help prevent the sequelae of meningococcemia.
No tests ordered, despite baby’s yellowing skin
Many studies suggest that our ability to judge bilirubin levels on the basis of skin color is rather limited.
A 5-DAY-OLD INFANT’S YELLOW COMPLEXION led his worried mother to take him to a family practice. The physician assistant (PA) who examined the child noted yellowing of his face and chest. When the baby’s doctor arrived at the office unexpectedly, the PA consulted with her. The mother was given standard infant care instructions; no orders for diagnostic testing were issued.
Two days later the baby’s skin became yellower and he appeared lethargic. His mother brought him to a clinic, where she was told to take him to the hospital immediately. Testing at the hospital revealed an elevated bilirubin level. The infant developed kernicterus and suffered brain damage, resulting in developmental delays and cerebral palsy.
PLAINTIFF’S CLAIM The physician was negligent in failing to test and treat the infant promptly. The mother claimed that the physician had treated her older son for jaundice, as well. The mother also claimed that the physician noted the infant’s skin color but did nothing.
THE DEFENSE The infant’s sclera were white and he was alert and active when examined. The mother didn’t follow the instructions given to her.
VERDICT $6.25 million Delaware verdict.
COMMENT Many studies suggest that our ability to judge bilirubin levels on the basis of skin color is rather limited. It’s hard to imagine not doing a simple test in this situation.
Amputation blamed on tardy Dx of compartment syndrome
PAIN IN HER RIGHT LEG AND KNEE prompted a woman in her 60s to go to the emergency department (ED). She couldn’t remember any specific event or trauma that might have triggered the pain. Her history included deep vein thrombosis, pulmonary embolism, diabetes, hypertension, placement of a Green-field filter, and right knee replacement. She was taking warfarin; her international normalized ratio (INR) in the ED was 5.0. A physician diagnosed joint effusion and sent the patient home on pain killers.
Two days later, the patient returned to the ED complaining of numbness in her leg and excruciating pain in her right calf. She was seen by a different physician, who ordered a surgical consultation. Evaluation revealed a lack of sensation in her right foot, a dorsalis pedis pulse undetectable by Doppler ultrasound, and inability to dorsiflex or plantarflex the right foot.
Compartment syndrome was diagnosed and an emergent fasciotomy performed. The patient suffered extensive muscle and tissue death and became septic, necessitating an above-knee amputation. While recuperating and waiting for a prosthesis, the patient fell from her wheelchair, fracturing her dominant arm and shoulder in several places.
PLAINTIFF’S CLAIM No information about the plaintiff‘s claim is available.
THE DEFENSE No information about the defense is available.
VERDICT $890,000 Virginia settlement.
COMMENT When the diagnosis is ambiguous, close follow-up and reevaluation is key to avoiding a hefty settlement.
Abnormal labs go unnoted, patient goes into septic shock
A 52-YEAR-OLD WOMAN went to the ED because of vomiting and weakness. Her fingers and toes were blue; she was tachycardic and hypotensive. A pacemaker/defibrillator had been implanted 3 weeks earlier. The woman’s history included cardiomyopathy, eczema, renal failure, and lumbar fusion requiring maintenance narcotic medication. When initial blood tests showed hypokalemia, she was given potassium and general fluid resuscitation.
The ED physician also ordered a complete blood count, which automatically included differential and band counts. The patient’s bands were high and her platelets low, but these results weren’t noted.
The patient improved after receiving fluids; her longtime physician admitted her to the hospital with a diagnosis of hypokalemia and narcotic withdrawal. He ordered repeat blood work for the following morning.
That evening, another doctor, who was covering for the patient’s physician, received calls from nurses reporting that the patient was complaining of increased pain in her extremities. He diagnosed Raynaud’s syndrome and ordered medication. The patient’s physician also diagnosed Raynaud’s syndrome when he saw her the next morning; he noted that she was improving and ordered her diet to resume. The results from the second CBC, performed that morning, weren’t noted in the patient’s chart.
The covering doctor was on duty again in the evening and again received calls reporting that the patient was in pain. The following morning the patient went into septic shock. She was diagnosed with a staph infection and transferred to the ICU, where she died of sepsis and multi-organ failure a few days later.
PLAINTIFF’S CLAIM The doctors and nurses were negligent in failing to note the abnormal band and platelet counts for 44 hours. The physicians should have recognized signs and symptoms of infection and administered antibiotics. The hospital should have reported the laboratory results and findings of infection to the physicians.
THE DEFENSE The patient’s physician maintained that the patient’s signs and symptoms weren’t consistent with infection. He didn’t order a differential blood test and wasn’t aware that the hospital performed it automatically. He claimed that the results weren’t available to him on the first 2 days; the hospital and nurses claimed that the results were available.
The covering doctor argued that he was only the on-call physician, never actually saw the patient, and had no duty to follow up on the blood tests. The hospital maintained that the nurses had no duty to look at the laboratory results unless requested to do so and that the physicians hadn’t asked them to do so.
VERDICT $500,000 Illinois verdict against the patient’s physician; high/low agreement of $3 million/$150,000 between plaintiff and hospital ($150,000 to be set off from the verdict against the physician).
COMMENT If a test is ordered, review it promptly. Ignorance is unlikely to be an adequate defense in a malpractice allegation.
Infection, then rapid death
HIGH FEVER, DIARRHEA, LETHARGY, SPREADING RASH, and other symptoms in a 16-month-old boy led to an ED visit. The child died about 3 hours later from meningococcemia and sepsis caused by Neisseria meningitidis (Waterhouse-Friderichsen syndrome).
PLAINTIFFS’ CLAIM The ED physician failed to properly monitor and treat the child’s deteriorating condition from meningococcemia and septic shock.
THE DEFENSE The child received proper treatment, but his condition was too far advanced to prevent his death.
VERDICT Illinois defense verdict.
COMMENT Urgent evaluation and treatment—even today—can be imperative to help prevent the sequelae of meningococcemia.
No tests ordered, despite baby’s yellowing skin
Many studies suggest that our ability to judge bilirubin levels on the basis of skin color is rather limited.
A 5-DAY-OLD INFANT’S YELLOW COMPLEXION led his worried mother to take him to a family practice. The physician assistant (PA) who examined the child noted yellowing of his face and chest. When the baby’s doctor arrived at the office unexpectedly, the PA consulted with her. The mother was given standard infant care instructions; no orders for diagnostic testing were issued.
Two days later the baby’s skin became yellower and he appeared lethargic. His mother brought him to a clinic, where she was told to take him to the hospital immediately. Testing at the hospital revealed an elevated bilirubin level. The infant developed kernicterus and suffered brain damage, resulting in developmental delays and cerebral palsy.
PLAINTIFF’S CLAIM The physician was negligent in failing to test and treat the infant promptly. The mother claimed that the physician had treated her older son for jaundice, as well. The mother also claimed that the physician noted the infant’s skin color but did nothing.
THE DEFENSE The infant’s sclera were white and he was alert and active when examined. The mother didn’t follow the instructions given to her.
VERDICT $6.25 million Delaware verdict.
COMMENT Many studies suggest that our ability to judge bilirubin levels on the basis of skin color is rather limited. It’s hard to imagine not doing a simple test in this situation.
Amputation blamed on tardy Dx of compartment syndrome
PAIN IN HER RIGHT LEG AND KNEE prompted a woman in her 60s to go to the emergency department (ED). She couldn’t remember any specific event or trauma that might have triggered the pain. Her history included deep vein thrombosis, pulmonary embolism, diabetes, hypertension, placement of a Green-field filter, and right knee replacement. She was taking warfarin; her international normalized ratio (INR) in the ED was 5.0. A physician diagnosed joint effusion and sent the patient home on pain killers.
Two days later, the patient returned to the ED complaining of numbness in her leg and excruciating pain in her right calf. She was seen by a different physician, who ordered a surgical consultation. Evaluation revealed a lack of sensation in her right foot, a dorsalis pedis pulse undetectable by Doppler ultrasound, and inability to dorsiflex or plantarflex the right foot.
Compartment syndrome was diagnosed and an emergent fasciotomy performed. The patient suffered extensive muscle and tissue death and became septic, necessitating an above-knee amputation. While recuperating and waiting for a prosthesis, the patient fell from her wheelchair, fracturing her dominant arm and shoulder in several places.
PLAINTIFF’S CLAIM No information about the plaintiff‘s claim is available.
THE DEFENSE No information about the defense is available.
VERDICT $890,000 Virginia settlement.
COMMENT When the diagnosis is ambiguous, close follow-up and reevaluation is key to avoiding a hefty settlement.
Abnormal labs go unnoted, patient goes into septic shock
A 52-YEAR-OLD WOMAN went to the ED because of vomiting and weakness. Her fingers and toes were blue; she was tachycardic and hypotensive. A pacemaker/defibrillator had been implanted 3 weeks earlier. The woman’s history included cardiomyopathy, eczema, renal failure, and lumbar fusion requiring maintenance narcotic medication. When initial blood tests showed hypokalemia, she was given potassium and general fluid resuscitation.
The ED physician also ordered a complete blood count, which automatically included differential and band counts. The patient’s bands were high and her platelets low, but these results weren’t noted.
The patient improved after receiving fluids; her longtime physician admitted her to the hospital with a diagnosis of hypokalemia and narcotic withdrawal. He ordered repeat blood work for the following morning.
That evening, another doctor, who was covering for the patient’s physician, received calls from nurses reporting that the patient was complaining of increased pain in her extremities. He diagnosed Raynaud’s syndrome and ordered medication. The patient’s physician also diagnosed Raynaud’s syndrome when he saw her the next morning; he noted that she was improving and ordered her diet to resume. The results from the second CBC, performed that morning, weren’t noted in the patient’s chart.
The covering doctor was on duty again in the evening and again received calls reporting that the patient was in pain. The following morning the patient went into septic shock. She was diagnosed with a staph infection and transferred to the ICU, where she died of sepsis and multi-organ failure a few days later.
PLAINTIFF’S CLAIM The doctors and nurses were negligent in failing to note the abnormal band and platelet counts for 44 hours. The physicians should have recognized signs and symptoms of infection and administered antibiotics. The hospital should have reported the laboratory results and findings of infection to the physicians.
THE DEFENSE The patient’s physician maintained that the patient’s signs and symptoms weren’t consistent with infection. He didn’t order a differential blood test and wasn’t aware that the hospital performed it automatically. He claimed that the results weren’t available to him on the first 2 days; the hospital and nurses claimed that the results were available.
The covering doctor argued that he was only the on-call physician, never actually saw the patient, and had no duty to follow up on the blood tests. The hospital maintained that the nurses had no duty to look at the laboratory results unless requested to do so and that the physicians hadn’t asked them to do so.
VERDICT $500,000 Illinois verdict against the patient’s physician; high/low agreement of $3 million/$150,000 between plaintiff and hospital ($150,000 to be set off from the verdict against the physician).
COMMENT If a test is ordered, review it promptly. Ignorance is unlikely to be an adequate defense in a malpractice allegation.
Infection, then rapid death
HIGH FEVER, DIARRHEA, LETHARGY, SPREADING RASH, and other symptoms in a 16-month-old boy led to an ED visit. The child died about 3 hours later from meningococcemia and sepsis caused by Neisseria meningitidis (Waterhouse-Friderichsen syndrome).
PLAINTIFFS’ CLAIM The ED physician failed to properly monitor and treat the child’s deteriorating condition from meningococcemia and septic shock.
THE DEFENSE The child received proper treatment, but his condition was too far advanced to prevent his death.
VERDICT Illinois defense verdict.
COMMENT Urgent evaluation and treatment—even today—can be imperative to help prevent the sequelae of meningococcemia.