Law & Medicine

Delay in diagnosing blastomycosis cuts a young life short

COUGH, FEVER, AND FLU-LIKE SYMPTOMS for a week prompted a 25-year-old man to visit his physician, who prescribed an antibiotic. When the symptoms didn‘t improve after 3 days, the patient went to a local health care group, where a physician assistant continued the antibiotic, performed a tuberculosis test, and instructed the young man to return in 3 days.

At the return visit, the patient still had the cough and a fever of 101°F, as well as decreased breath sounds and bilateral pain in his lower lungs when reclining. Another physician assistant diagnosed pneumonia and prescribed a different antibiotic, but didn’t order chest radiographs or blood work—or measure oxygen saturation. He wrote the patient a 5-day excuse from work and told him to return if his condition worsened.

A few days later, the patient went to the emergency department, where he was diagnosed with a pulmonary blastomycosis infection. The infection was too far advanced to treat effectively, and the man died shortly thereafter.

PLAINTIFF’S CLAIM The physician assistants were negligent for not having radiographs or blood work done and not consulting the supervising physician. The supervising physician didn’t review the examination and treatment notes.

THE DEFENSE No negligence occurred; an earlier diagnosis wouldn’t have changed the outcome.

VERDICT $3.7 million Wisconsin verdict.

COMMENT This case sends shivers down my spine. I really get worried when huge verdicts are returned for failure to diagnose rare conditions. How many times a week do we treat patients for “bronchitis” or community-acquired pneumonia without getting a radiograph or oxygen saturation measurement—especially in a 25-year-old!

A drug overdose, with plenty of blame to go around

AN 85-YEAR-OLD WOMAN was admitted to a nursing home for a temporary stay after she broke her arm shoveling snow in her driveway. Her physician prescribed a medication, to be given once a week, for the woman’s rheumatoid arthritis. But because a nurse transcribed the order incorrectly, the patient was given the medication every day. After 17 days, she died of an overdose.

PLAINTIFF’S CLAIM The nurse was negligent in transcribing the order incorrectly, the doctor was negligent for signing the order without reading the nurse’s note, and the pharmacy was negligent for failing to discover the dosage error.

THE DEFENSE No information about the defense is available.

VERDICT $1 million Ohio settlement.

COMMENT The moral of this story: Don’t sign those nursing home orders on autopilot!

Unexamined mass isn’t benign after all

A PEA-SIZED MASS on a 34-year-old woman’s head was diagnosed as a sebaceous cyst. A physician assistant removed the mass, which was thrown away without being sent for pathologic examination. A year later, the mass reappeared and was identified as a sarcoma. The woman died a year later.

PLAINTIFF’S CLAIM The doctor and physician assistant were negligent in failing to diagnose the mass accurately and failing to send it for pathologic analysis.

THE DEFENSE The mass appeared normal and didn’t require examination.

VERDICT $1.5 million Texas settlement.

COMMENT I make it a policy to send all skin specimens—no matter how innocuous—for pathologic determination. I recently testified for a defendant in a case similar to this one (fortunately the physician won).

Delay in diagnosing blastomycosis cuts a young life short

COUGH, FEVER, AND FLU-LIKE SYMPTOMS for a week prompted a 25-year-old man to visit his physician, who prescribed an antibiotic. When the symptoms didn‘t improve after 3 days, the patient went to a local health care group, where a physician assistant continued the antibiotic, performed a tuberculosis test, and instructed the young man to return in 3 days.

At the return visit, the patient still had the cough and a fever of 101°F, as well as decreased breath sounds and bilateral pain in his lower lungs when reclining. Another physician assistant diagnosed pneumonia and prescribed a different antibiotic, but didn’t order chest radiographs or blood work—or measure oxygen saturation. He wrote the patient a 5-day excuse from work and told him to return if his condition worsened.

A few days later, the patient went to the emergency department, where he was diagnosed with a pulmonary blastomycosis infection. The infection was too far advanced to treat effectively, and the man died shortly thereafter.

PLAINTIFF’S CLAIM The physician assistants were negligent for not having radiographs or blood work done and not consulting the supervising physician. The supervising physician didn’t review the examination and treatment notes.

THE DEFENSE No negligence occurred; an earlier diagnosis wouldn’t have changed the outcome.

VERDICT $3.7 million Wisconsin verdict.

COMMENT This case sends shivers down my spine. I really get worried when huge verdicts are returned for failure to diagnose rare conditions. How many times a week do we treat patients for “bronchitis” or community-acquired pneumonia without getting a radiograph or oxygen saturation measurement—especially in a 25-year-old!

A drug overdose, with plenty of blame to go around

AN 85-YEAR-OLD WOMAN was admitted to a nursing home for a temporary stay after she broke her arm shoveling snow in her driveway. Her physician prescribed a medication, to be given once a week, for the woman’s rheumatoid arthritis. But because a nurse transcribed the order incorrectly, the patient was given the medication every day. After 17 days, she died of an overdose.

PLAINTIFF’S CLAIM The nurse was negligent in transcribing the order incorrectly, the doctor was negligent for signing the order without reading the nurse’s note, and the pharmacy was negligent for failing to discover the dosage error.

THE DEFENSE No information about the defense is available.

VERDICT $1 million Ohio settlement.

COMMENT The moral of this story: Don’t sign those nursing home orders on autopilot!

Unexamined mass isn’t benign after all

A PEA-SIZED MASS on a 34-year-old woman’s head was diagnosed as a sebaceous cyst. A physician assistant removed the mass, which was thrown away without being sent for pathologic examination. A year later, the mass reappeared and was identified as a sarcoma. The woman died a year later.

PLAINTIFF’S CLAIM The doctor and physician assistant were negligent in failing to diagnose the mass accurately and failing to send it for pathologic analysis.

THE DEFENSE The mass appeared normal and didn’t require examination.

VERDICT $1.5 million Texas settlement.

COMMENT I make it a policy to send all skin specimens—no matter how innocuous—for pathologic determination. I recently testified for a defendant in a case similar to this one (fortunately the physician won).

Delay in diagnosing blastomycosis cuts a young life short

COUGH, FEVER, AND FLU-LIKE SYMPTOMS for a week prompted a 25-year-old man to visit his physician, who prescribed an antibiotic. When the symptoms didn‘t improve after 3 days, the patient went to a local health care group, where a physician assistant continued the antibiotic, performed a tuberculosis test, and instructed the young man to return in 3 days.

At the return visit, the patient still had the cough and a fever of 101°F, as well as decreased breath sounds and bilateral pain in his lower lungs when reclining. Another physician assistant diagnosed pneumonia and prescribed a different antibiotic, but didn’t order chest radiographs or blood work—or measure oxygen saturation. He wrote the patient a 5-day excuse from work and told him to return if his condition worsened.

A few days later, the patient went to the emergency department, where he was diagnosed with a pulmonary blastomycosis infection. The infection was too far advanced to treat effectively, and the man died shortly thereafter.

PLAINTIFF’S CLAIM The physician assistants were negligent for not having radiographs or blood work done and not consulting the supervising physician. The supervising physician didn’t review the examination and treatment notes.

THE DEFENSE No negligence occurred; an earlier diagnosis wouldn’t have changed the outcome.

VERDICT $3.7 million Wisconsin verdict.

COMMENT This case sends shivers down my spine. I really get worried when huge verdicts are returned for failure to diagnose rare conditions. How many times a week do we treat patients for “bronchitis” or community-acquired pneumonia without getting a radiograph or oxygen saturation measurement—especially in a 25-year-old!

A drug overdose, with plenty of blame to go around

AN 85-YEAR-OLD WOMAN was admitted to a nursing home for a temporary stay after she broke her arm shoveling snow in her driveway. Her physician prescribed a medication, to be given once a week, for the woman’s rheumatoid arthritis. But because a nurse transcribed the order incorrectly, the patient was given the medication every day. After 17 days, she died of an overdose.

PLAINTIFF’S CLAIM The nurse was negligent in transcribing the order incorrectly, the doctor was negligent for signing the order without reading the nurse’s note, and the pharmacy was negligent for failing to discover the dosage error.

THE DEFENSE No information about the defense is available.

VERDICT $1 million Ohio settlement.

COMMENT The moral of this story: Don’t sign those nursing home orders on autopilot!

Unexamined mass isn’t benign after all

A PEA-SIZED MASS on a 34-year-old woman’s head was diagnosed as a sebaceous cyst. A physician assistant removed the mass, which was thrown away without being sent for pathologic examination. A year later, the mass reappeared and was identified as a sarcoma. The woman died a year later.

PLAINTIFF’S CLAIM The doctor and physician assistant were negligent in failing to diagnose the mass accurately and failing to send it for pathologic analysis.

THE DEFENSE The mass appeared normal and didn’t require examination.

VERDICT $1.5 million Texas settlement.

COMMENT I make it a policy to send all skin specimens—no matter how innocuous—for pathologic determination. I recently testified for a defendant in a case similar to this one (fortunately the physician won).

Question: An unconscious man is brought to an emergency department in vascular collapse. He had been thrown off a motorcycle and ruptured his spleen. The surgeon recommended emergency surgery and blood transfusion, but no next of kin was readily available to give consent. An old wrinkled card in his wallet indicates the patient is a Jehovah's Witness and should never receive blood, but there is a diagonal line drawn across that part of the card. Which of the following is best?

A. All interventions require informed consent, so in this case the surgeon should not operate.

B. Because this is an emergency, no consent for operation or blood transfusion is necessary, as long as you get two supporting doctor signatures.

C. If the man's spouse can be located and she gives consent for transfusion, then it's okay.

D. Operate on the patient, but respect his disavowal of blood even if it means death.

E. If the patient desperately needs a lifesaving blood transfusion, it should be given, because his wishes are not entirely clear.

Answer: E. Some of the other choices have merit, but the best answer is E. This is because of the dire nature of the patient's condition, the critical and immediate need for blood, and most of all, the reasonable belief that the line across the wrinkled card represents a revocation of an earlier refusal of blood. Some may view D as the better option, and it is arguably the legally “safe” approach. However, a life hangs in the balance, and a doctor's first duty is to the patient.

Exceptions to Informed Consent

Under some circumstances, informed consent may be neither possible nor necessary. Statutory provisions that protect public health and safety may mandate quarantine, examination, treatment of a patient, or referral of a death to a coroner without requiring patient or family consent. The following are legitimate exceptions to the informed consent requirement:

▸ Emergencies: The guiding principle is whether delay in treatment in order to obtain consent would result in harm to the patient. The procedure need not be lifesaving, as long as the potential harm to the patient is significant. This exception is typically provided for in state statutes on informed consent, such as this one from Hawaii: “Nothing in this section shall require informed consent from a patient or a patient's guardian when emergency treatment or an emergency surgical procedure is rendered by a health care provider and the obtaining of consent is not reasonably feasible under the circumstances without adversely affecting the condition of the patient's health” (Hawaii Revised Statutes §671-3 [d]).

▸ Unanticipated conditions during surgery: This is a narrowly construed exception and comes into play when a surgeon encounters an unanticipated abnormality within the field of surgery. It is called the “extension doctrine,” and it assumes that the surgeon is using reasonable judgment. Thus, a surgeon incurred no liability for draining some ovarian cysts during the course of an appendectomy (Kennedy v. Parrott, 90 S.E.2d 754 [N.C. 1956]). But in a case where the surgeon operated on the left ear despite consent only for the right ear, the court held his conduct actionable as the situation was not a true emergency (Mohr v. Williams, 104 N.W. 12 [Minn. 1905]). The condition must be one that was unforeseen, and the patient must not have expressly refused such an intervention. Most informed consent forms now incorporate an “unanticipated condition” clause.

▸ Therapeutic privilege: If a doctor believes that the patient's emotional and physical condition could be adversely affected by full disclosure of the treatment risks, disclosure may be legally withheld. This principle is called therapeutic privilege, which was clearly enunciated in Nishi v. Hartwell, Hawaii's first case on informed consent. The plaintiff-dentist, Dr. Nishi, sought damages for below-waist paralysis following thoracic aortography. This procedure-related risk was never discussed with him, purportedly because of his serious underlying cardiac status and extreme apprehension over his condition.

In addressing the therapeutic privilege defense raised by the defendant, the Hawaii Supreme Court held that “the doctrine recognizes that the primary duty of a physician is to do what is best for his patient, and that a physician may withhold disclosure of information regarding any untoward consequences of a treatment where full disclosure will be detrimental to the patient's total care and best interest” (Nishi v. Hartwell, 473 P.2d 116 [Haw. 1970]). This doctrine has subsequently been reaffirmed (Carr v. Strode, 79 Hawaii 475 [1995]).

In the well-known case of Canterbury v. Spence, the U.S. Court of Appeals in the District of Columbia also articulated the therapeutic privilege exception to informed consent, in order to enable the doctor to withhold risk information if such disclosure would pose a serious threat of psychological detriment to the patient. However, the physician is still required to disclose any information that will not prove harmful to the patient (Canterbury v. Spence, 464 F.2d 772 [D.C. Cir. 1972]).

▸ Waiver or risks known to the patient: Some patients expressly indicate that they do not wish to be informed of the treatment procedure and associated risks. This constitutes a waiver and is recognized as a legitimate exception. Waivers should be documented in writing. The health care provider is also not obligated to disclose risks that are commonly understood, obvious, or already known to the patient.

▸ Informed consent not feasible: The U.S. government was alleged to have used investigational drugs on military personnel during the Gulf War without their consent. In Doe v. Sullivan, a federal court refused to enforce the informed consent requirement because of the impracticality of obtaining consent under the circumstances (Doe v. Sullivan, 938 F.2d 1370 [D.C. Cir. 1991]). This exception to informed consent is obviously a very narrow one.

Contact the author at [email protected].

Question: An unconscious man is brought to an emergency department in vascular collapse. He had been thrown off a motorcycle and ruptured his spleen. The surgeon recommended emergency surgery and blood transfusion, but no next of kin was readily available to give consent. An old wrinkled card in his wallet indicates the patient is a Jehovah's Witness and should never receive blood, but there is a diagonal line drawn across that part of the card. Which of the following is best?

A. All interventions require informed consent, so in this case the surgeon should not operate.

B. Because this is an emergency, no consent for operation or blood transfusion is necessary, as long as you get two supporting doctor signatures.

C. If the man's spouse can be located and she gives consent for transfusion, then it's okay.

D. Operate on the patient, but respect his disavowal of blood even if it means death.

E. If the patient desperately needs a lifesaving blood transfusion, it should be given, because his wishes are not entirely clear.

Answer: E. Some of the other choices have merit, but the best answer is E. This is because of the dire nature of the patient's condition, the critical and immediate need for blood, and most of all, the reasonable belief that the line across the wrinkled card represents a revocation of an earlier refusal of blood. Some may view D as the better option, and it is arguably the legally “safe” approach. However, a life hangs in the balance, and a doctor's first duty is to the patient.

Exceptions to Informed Consent

Under some circumstances, informed consent may be neither possible nor necessary. Statutory provisions that protect public health and safety may mandate quarantine, examination, treatment of a patient, or referral of a death to a coroner without requiring patient or family consent. The following are legitimate exceptions to the informed consent requirement:

▸ Emergencies: The guiding principle is whether delay in treatment in order to obtain consent would result in harm to the patient. The procedure need not be lifesaving, as long as the potential harm to the patient is significant. This exception is typically provided for in state statutes on informed consent, such as this one from Hawaii: “Nothing in this section shall require informed consent from a patient or a patient's guardian when emergency treatment or an emergency surgical procedure is rendered by a health care provider and the obtaining of consent is not reasonably feasible under the circumstances without adversely affecting the condition of the patient's health” (Hawaii Revised Statutes §671-3 [d]).

▸ Unanticipated conditions during surgery: This is a narrowly construed exception and comes into play when a surgeon encounters an unanticipated abnormality within the field of surgery. It is called the “extension doctrine,” and it assumes that the surgeon is using reasonable judgment. Thus, a surgeon incurred no liability for draining some ovarian cysts during the course of an appendectomy (Kennedy v. Parrott, 90 S.E.2d 754 [N.C. 1956]). But in a case where the surgeon operated on the left ear despite consent only for the right ear, the court held his conduct actionable as the situation was not a true emergency (Mohr v. Williams, 104 N.W. 12 [Minn. 1905]). The condition must be one that was unforeseen, and the patient must not have expressly refused such an intervention. Most informed consent forms now incorporate an “unanticipated condition” clause.

▸ Therapeutic privilege: If a doctor believes that the patient's emotional and physical condition could be adversely affected by full disclosure of the treatment risks, disclosure may be legally withheld. This principle is called therapeutic privilege, which was clearly enunciated in Nishi v. Hartwell, Hawaii's first case on informed consent. The plaintiff-dentist, Dr. Nishi, sought damages for below-waist paralysis following thoracic aortography. This procedure-related risk was never discussed with him, purportedly because of his serious underlying cardiac status and extreme apprehension over his condition.

In addressing the therapeutic privilege defense raised by the defendant, the Hawaii Supreme Court held that “the doctrine recognizes that the primary duty of a physician is to do what is best for his patient, and that a physician may withhold disclosure of information regarding any untoward consequences of a treatment where full disclosure will be detrimental to the patient's total care and best interest” (Nishi v. Hartwell, 473 P.2d 116 [Haw. 1970]). This doctrine has subsequently been reaffirmed (Carr v. Strode, 79 Hawaii 475 [1995]).

In the well-known case of Canterbury v. Spence, the U.S. Court of Appeals in the District of Columbia also articulated the therapeutic privilege exception to informed consent, in order to enable the doctor to withhold risk information if such disclosure would pose a serious threat of psychological detriment to the patient. However, the physician is still required to disclose any information that will not prove harmful to the patient (Canterbury v. Spence, 464 F.2d 772 [D.C. Cir. 1972]).

▸ Waiver or risks known to the patient: Some patients expressly indicate that they do not wish to be informed of the treatment procedure and associated risks. This constitutes a waiver and is recognized as a legitimate exception. Waivers should be documented in writing. The health care provider is also not obligated to disclose risks that are commonly understood, obvious, or already known to the patient.

▸ Informed consent not feasible: The U.S. government was alleged to have used investigational drugs on military personnel during the Gulf War without their consent. In Doe v. Sullivan, a federal court refused to enforce the informed consent requirement because of the impracticality of obtaining consent under the circumstances (Doe v. Sullivan, 938 F.2d 1370 [D.C. Cir. 1991]). This exception to informed consent is obviously a very narrow one.

Contact the author at [email protected].

Question: An unconscious man is brought to an emergency department in vascular collapse. He had been thrown off a motorcycle and ruptured his spleen. The surgeon recommended emergency surgery and blood transfusion, but no next of kin was readily available to give consent. An old wrinkled card in his wallet indicates the patient is a Jehovah's Witness and should never receive blood, but there is a diagonal line drawn across that part of the card. Which of the following is best?

A. All interventions require informed consent, so in this case the surgeon should not operate.

B. Because this is an emergency, no consent for operation or blood transfusion is necessary, as long as you get two supporting doctor signatures.

C. If the man's spouse can be located and she gives consent for transfusion, then it's okay.

D. Operate on the patient, but respect his disavowal of blood even if it means death.

E. If the patient desperately needs a lifesaving blood transfusion, it should be given, because his wishes are not entirely clear.

Answer: E. Some of the other choices have merit, but the best answer is E. This is because of the dire nature of the patient's condition, the critical and immediate need for blood, and most of all, the reasonable belief that the line across the wrinkled card represents a revocation of an earlier refusal of blood. Some may view D as the better option, and it is arguably the legally “safe” approach. However, a life hangs in the balance, and a doctor's first duty is to the patient.

Exceptions to Informed Consent

Under some circumstances, informed consent may be neither possible nor necessary. Statutory provisions that protect public health and safety may mandate quarantine, examination, treatment of a patient, or referral of a death to a coroner without requiring patient or family consent. The following are legitimate exceptions to the informed consent requirement:

▸ Emergencies: The guiding principle is whether delay in treatment in order to obtain consent would result in harm to the patient. The procedure need not be lifesaving, as long as the potential harm to the patient is significant. This exception is typically provided for in state statutes on informed consent, such as this one from Hawaii: “Nothing in this section shall require informed consent from a patient or a patient's guardian when emergency treatment or an emergency surgical procedure is rendered by a health care provider and the obtaining of consent is not reasonably feasible under the circumstances without adversely affecting the condition of the patient's health” (Hawaii Revised Statutes §671-3 [d]).

▸ Unanticipated conditions during surgery: This is a narrowly construed exception and comes into play when a surgeon encounters an unanticipated abnormality within the field of surgery. It is called the “extension doctrine,” and it assumes that the surgeon is using reasonable judgment. Thus, a surgeon incurred no liability for draining some ovarian cysts during the course of an appendectomy (Kennedy v. Parrott, 90 S.E.2d 754 [N.C. 1956]). But in a case where the surgeon operated on the left ear despite consent only for the right ear, the court held his conduct actionable as the situation was not a true emergency (Mohr v. Williams, 104 N.W. 12 [Minn. 1905]). The condition must be one that was unforeseen, and the patient must not have expressly refused such an intervention. Most informed consent forms now incorporate an “unanticipated condition” clause.

▸ Therapeutic privilege: If a doctor believes that the patient's emotional and physical condition could be adversely affected by full disclosure of the treatment risks, disclosure may be legally withheld. This principle is called therapeutic privilege, which was clearly enunciated in Nishi v. Hartwell, Hawaii's first case on informed consent. The plaintiff-dentist, Dr. Nishi, sought damages for below-waist paralysis following thoracic aortography. This procedure-related risk was never discussed with him, purportedly because of his serious underlying cardiac status and extreme apprehension over his condition.

In addressing the therapeutic privilege defense raised by the defendant, the Hawaii Supreme Court held that “the doctrine recognizes that the primary duty of a physician is to do what is best for his patient, and that a physician may withhold disclosure of information regarding any untoward consequences of a treatment where full disclosure will be detrimental to the patient's total care and best interest” (Nishi v. Hartwell, 473 P.2d 116 [Haw. 1970]). This doctrine has subsequently been reaffirmed (Carr v. Strode, 79 Hawaii 475 [1995]).

In the well-known case of Canterbury v. Spence, the U.S. Court of Appeals in the District of Columbia also articulated the therapeutic privilege exception to informed consent, in order to enable the doctor to withhold risk information if such disclosure would pose a serious threat of psychological detriment to the patient. However, the physician is still required to disclose any information that will not prove harmful to the patient (Canterbury v. Spence, 464 F.2d 772 [D.C. Cir. 1972]).

▸ Waiver or risks known to the patient: Some patients expressly indicate that they do not wish to be informed of the treatment procedure and associated risks. This constitutes a waiver and is recognized as a legitimate exception. Waivers should be documented in writing. The health care provider is also not obligated to disclose risks that are commonly understood, obvious, or already known to the patient.

▸ Informed consent not feasible: The U.S. government was alleged to have used investigational drugs on military personnel during the Gulf War without their consent. In Doe v. Sullivan, a federal court refused to enforce the informed consent requirement because of the impracticality of obtaining consent under the circumstances (Doe v. Sullivan, 938 F.2d 1370 [D.C. Cir. 1991]). This exception to informed consent is obviously a very narrow one.

Contact the author at [email protected].

Improperly treated C difficile leads to total colectomy

A 66-YEAR-OLD MAN contracted Clostridium difficile during hospitalization for treatment of a foot infection. The treating physician prescribed a 7-day course of antibiotics rather than the 14-day course recommended by a hospital infectious disease specialist. On the day the patient was discharged from the hospital, the treating physician dictated a letter to the patient’s primary care physician, but misdated it with the previous year.

When the patient visited his primary care physician the following week, he was seen by an associate of his regular doctor. According to the patient, the associate said she hadn’t seen the letter that had been sent to his primary care physician. The associate then re-prescribed the cephalosporin antibiotic that had led to the patient’s C difficile illness in the first place.

When the patient went back to his primary care physician’s office 2 weeks later, a physician assistant (PA) told him to return to the hospital because he’d been ill since discharge. At the hospital, toxic megacolon and septicemia were diagnosed, and the patient underwent immediate surgery to remove his entire colon and perform an ileostomy.

PLAINTIFF’S CLAIM The doctor who treated the foot infection at the hospital was negligent in failing to follow up and properly transfer care of the patient to the primary care physician. The primary care physician and his associate were negligent in failing to treat the C difficile infection properly.

THE DEFENSE The doctor who treated the foot infection denied negligence and maintained that he’d acted properly in dictating the discharge letter to the primary care physician.

The primary care physician and his associate claimed that they hadn’t received the letter until more than 30 days after the patient was discharged. The plaintiff countered that the PA had told him he had cellulitis and osteomyelitis—something the PA couldn’t have known unless he’d seen the letter describing those diagnoses. The plaintiff also contended that neither the primary care physician nor his associate complained about the tardiness of the letter at the time they received it.

VERDICT $2.75 million Pennsylvania verdict.

COMMENT This case is a classic failure of our system for coordination and handoff of care. Although such problems are endemic, substantial malpractice judgments await the unwary.

For want of a timely transfusion, man bleeds to death

A MAN SUSPECTED OF HAVING GASTROINTESTINAL BLEEDING was admitted to a university medical center. He collapsed the next day. A resident informed the attending physician, who ordered a transfusion over the phone. The patient died of cardiac arrest from internal bleeding 6 hours after the transfusion was ordered, but before it was given.

PLAINTIFF’S CLAIM The blood bank had reported that the transfusion was ready 3 hours before the man collapsed; the attending physician, resident, and nurses were negligent in failing to administer the transfusion in a timely manner.

THE DEFENSE The attending physician claimed that he wasn’t required to come to the hospital for 24 hours after the patient was admitted and that the resident didn’t provide him with information that would have prompted him to come in and examine the patient. The resident maintained that he gave the attending physician all the necessary data and provided an accurate account of what had happened to the patient.

VERDICT $1.75 million New Jersey settlement.

COMMENT Speaking of coordination of care, understand the risks of working with residents, particularly when caring for a potentially unstable patient. I doubt many juries would be sympathetic to, “I wasn’t required to come to the hospital for 24 hours after admission.”

Improperly treated C difficile leads to total colectomy

A 66-YEAR-OLD MAN contracted Clostridium difficile during hospitalization for treatment of a foot infection. The treating physician prescribed a 7-day course of antibiotics rather than the 14-day course recommended by a hospital infectious disease specialist. On the day the patient was discharged from the hospital, the treating physician dictated a letter to the patient’s primary care physician, but misdated it with the previous year.

When the patient visited his primary care physician the following week, he was seen by an associate of his regular doctor. According to the patient, the associate said she hadn’t seen the letter that had been sent to his primary care physician. The associate then re-prescribed the cephalosporin antibiotic that had led to the patient’s C difficile illness in the first place.

When the patient went back to his primary care physician’s office 2 weeks later, a physician assistant (PA) told him to return to the hospital because he’d been ill since discharge. At the hospital, toxic megacolon and septicemia were diagnosed, and the patient underwent immediate surgery to remove his entire colon and perform an ileostomy.

PLAINTIFF’S CLAIM The doctor who treated the foot infection at the hospital was negligent in failing to follow up and properly transfer care of the patient to the primary care physician. The primary care physician and his associate were negligent in failing to treat the C difficile infection properly.

THE DEFENSE The doctor who treated the foot infection denied negligence and maintained that he’d acted properly in dictating the discharge letter to the primary care physician.

The primary care physician and his associate claimed that they hadn’t received the letter until more than 30 days after the patient was discharged. The plaintiff countered that the PA had told him he had cellulitis and osteomyelitis—something the PA couldn’t have known unless he’d seen the letter describing those diagnoses. The plaintiff also contended that neither the primary care physician nor his associate complained about the tardiness of the letter at the time they received it.

VERDICT $2.75 million Pennsylvania verdict.

COMMENT This case is a classic failure of our system for coordination and handoff of care. Although such problems are endemic, substantial malpractice judgments await the unwary.

For want of a timely transfusion, man bleeds to death

A MAN SUSPECTED OF HAVING GASTROINTESTINAL BLEEDING was admitted to a university medical center. He collapsed the next day. A resident informed the attending physician, who ordered a transfusion over the phone. The patient died of cardiac arrest from internal bleeding 6 hours after the transfusion was ordered, but before it was given.

PLAINTIFF’S CLAIM The blood bank had reported that the transfusion was ready 3 hours before the man collapsed; the attending physician, resident, and nurses were negligent in failing to administer the transfusion in a timely manner.

THE DEFENSE The attending physician claimed that he wasn’t required to come to the hospital for 24 hours after the patient was admitted and that the resident didn’t provide him with information that would have prompted him to come in and examine the patient. The resident maintained that he gave the attending physician all the necessary data and provided an accurate account of what had happened to the patient.

VERDICT $1.75 million New Jersey settlement.

COMMENT Speaking of coordination of care, understand the risks of working with residents, particularly when caring for a potentially unstable patient. I doubt many juries would be sympathetic to, “I wasn’t required to come to the hospital for 24 hours after admission.”

Improperly treated C difficile leads to total colectomy

A 66-YEAR-OLD MAN contracted Clostridium difficile during hospitalization for treatment of a foot infection. The treating physician prescribed a 7-day course of antibiotics rather than the 14-day course recommended by a hospital infectious disease specialist. On the day the patient was discharged from the hospital, the treating physician dictated a letter to the patient’s primary care physician, but misdated it with the previous year.

When the patient visited his primary care physician the following week, he was seen by an associate of his regular doctor. According to the patient, the associate said she hadn’t seen the letter that had been sent to his primary care physician. The associate then re-prescribed the cephalosporin antibiotic that had led to the patient’s C difficile illness in the first place.

When the patient went back to his primary care physician’s office 2 weeks later, a physician assistant (PA) told him to return to the hospital because he’d been ill since discharge. At the hospital, toxic megacolon and septicemia were diagnosed, and the patient underwent immediate surgery to remove his entire colon and perform an ileostomy.

PLAINTIFF’S CLAIM The doctor who treated the foot infection at the hospital was negligent in failing to follow up and properly transfer care of the patient to the primary care physician. The primary care physician and his associate were negligent in failing to treat the C difficile infection properly.

THE DEFENSE The doctor who treated the foot infection denied negligence and maintained that he’d acted properly in dictating the discharge letter to the primary care physician.

The primary care physician and his associate claimed that they hadn’t received the letter until more than 30 days after the patient was discharged. The plaintiff countered that the PA had told him he had cellulitis and osteomyelitis—something the PA couldn’t have known unless he’d seen the letter describing those diagnoses. The plaintiff also contended that neither the primary care physician nor his associate complained about the tardiness of the letter at the time they received it.

VERDICT $2.75 million Pennsylvania verdict.

COMMENT This case is a classic failure of our system for coordination and handoff of care. Although such problems are endemic, substantial malpractice judgments await the unwary.

For want of a timely transfusion, man bleeds to death

A MAN SUSPECTED OF HAVING GASTROINTESTINAL BLEEDING was admitted to a university medical center. He collapsed the next day. A resident informed the attending physician, who ordered a transfusion over the phone. The patient died of cardiac arrest from internal bleeding 6 hours after the transfusion was ordered, but before it was given.

PLAINTIFF’S CLAIM The blood bank had reported that the transfusion was ready 3 hours before the man collapsed; the attending physician, resident, and nurses were negligent in failing to administer the transfusion in a timely manner.

THE DEFENSE The attending physician claimed that he wasn’t required to come to the hospital for 24 hours after the patient was admitted and that the resident didn’t provide him with information that would have prompted him to come in and examine the patient. The resident maintained that he gave the attending physician all the necessary data and provided an accurate account of what had happened to the patient.

VERDICT $1.75 million New Jersey settlement.

COMMENT Speaking of coordination of care, understand the risks of working with residents, particularly when caring for a potentially unstable patient. I doubt many juries would be sympathetic to, “I wasn’t required to come to the hospital for 24 hours after admission.”

Question: As a family physician with a large practice, you own your own x-ray machine, and you regularly obtain and interpret your patients' x-rays instead of having a radiologist read them. Assume that the community standard is for radiologists rather than generalists to read x-rays. What level of accuracy or standard of care will you be held to?

A. That of a generalist.

B. That of a reasonable doctor using his or her best judgment.

C. That of a radiologist.

D. A standard between that of a radiologist and a generalist.

E. That of an x-ray technician whose expertise in radiology is similar to yours.

Answer: C. A doctor is usually held to the objective standards of fellow doctors, given the circumstances of the case. Specialists will be held to a higher standard: that ordinarily expected of fellow doctors in that specialty. However, if you, a generalist, assume the duties normally performed by a specialist, the law will consider that you are representing yourself as capable of functioning at that level. In the above case, if generalists do not regularly read their own x-rays and you, a family physician, choose to do so, you will be held to the standard of a radiologist. Choice B is incorrect because “best judgment” is not a legal standard that governs malpractice matters.

The legal duty owed by doctors to their patients is that of reasonable care, defined as that level of care expected of the reasonably competent doctor—that is, a professional standard, not that of a reasonably prudent layperson, the latter being the standard used in negligence actions. Thus, Alabama has held that physicians must “exercise such reasonable care, diligence, and skill as reasonably competent physicians” would exercise in the same or similar circumstances (Keebler v. Winfield Carraway Hospital, 531 So.2d 841 [Ala. 1988]). An Illinois court used similar words: “[A] physician must possess and apply the knowledge, skill, and care of a reasonably well-qualified physician in the relevant medical community” (Purtill v. Hess, 489 N.E.2d 867 [Ill. 1986]). And in Hawaii, “the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony” (Craft v. Peebles, 893 P.2d 138 [Haw. 1995]).

While the professional standard applies to injuries arising out of medical care, the “reasonable person” standard continues to govern non–health care activities such as falls on slippery hospital floors. Unfortunately, the distinction may not always be clear. As one author put it, “Sometimes it is difficult to differentiate bad housekeeping and bad medical care, as where rats in a hospital repeatedly bit a comatose patient” (Dobbs, D.B. 2000. The Law of Torts. St. Paul, Minn.: West Group. Chapter 14, referring to Lejeunee v. Rayne Branch Hospital, 556 So.2d 559 [La. 1990]).

The doctor's specialty does matter in legal proceedings addressing the standard of care. The surgeon will be judged according to the community standard of the ordinarily skilled surgeon, and the generalists according to that of other generalists. But there is a separate duty to refer if the case is outside the doctor's field of expertise. If the standard is to refer to a specialist, the family physician who undertakes to personally treat the patient within that specialty will be held to that higher standard. In Simpson v. Davis, for example, a general dentist performed root canal work and was therefore held to the standard of an endodontist (Simpson v. Davis, 549 P.2d 950 [Kan. 1976]).

The law expects doctors to provide reasonable care to their patients, even for conditions arguably outside their specialty. In a recent lawsuit, a gynecologist failed to consider appendicitis in a 32-year-old woman who presented with fever, chills, nausea, and lower abdominal pain. This delay in diagnosis led to rupture. The defendant-gynecologist argued that the diagnosis of a urinary tract infection or a pelvic condition was appropriate given the doctor's specialty. The gynecologist did not document the abdominal and pelvic examinations in detail, and did not obtain an ultrasound study. The trial court entered a verdict for the plaintiff; jury members later confided that the verdict would have been different had the doctor simply included appendicitis in the differential diagnosis (“Not My Specialty.” The Doctor's Advocate, Third Quarter, 2006).

In medicine, there is frequently a minority view as to how things ought to be done, so the standard of care need not necessarily be unanimous. So long as the minority view is held by a respectable group of doctors, the law will accept it as a legitimate alternative. However, this does not mean that any “on-the-fringe” publication on an issue will suffice. A minority view is reflective of a different approach to the same problem, but the care rendered must still comply with the standard of care espoused. In a Texas case, the court was not concerned with whether the practice was that of a respectable minority or a considerable number of physicians, but whether it met the standard. The case involved an augmentation mammoplasty procedure that resulted in silicone leakage. A number of qualified physicians had used that procedure, and this satisfied the court that the standard had been met (Henderson v. Heyer-Schulte Corp. of Santa Barbara, 600 S.W.2d 844 [Tex Civ. App. 1980]).

Finally, courts have in the past considered the locale where the tortious act took place, invoking the so-called “locality rule.” This was based on the belief that different standards of care were applicable in different areas of the country, for example, urban vs. rural. However, this rule has been largely abandoned in favor of a uniform standard, because current medical training and board certifications all adhere to a national standard. But geographic considerations are not entirely irrelevant. Where the local medical facilities lack state-of-the-art equipment or specialists, courts will give due consideration to such conditions. Still, there is always the duty to reasonably transfer to an available specialist or facility, and failure to do so may form the basis of liability.

Question: As a family physician with a large practice, you own your own x-ray machine, and you regularly obtain and interpret your patients' x-rays instead of having a radiologist read them. Assume that the community standard is for radiologists rather than generalists to read x-rays. What level of accuracy or standard of care will you be held to?

A. That of a generalist.

B. That of a reasonable doctor using his or her best judgment.

C. That of a radiologist.

D. A standard between that of a radiologist and a generalist.

E. That of an x-ray technician whose expertise in radiology is similar to yours.

Answer: C. A doctor is usually held to the objective standards of fellow doctors, given the circumstances of the case. Specialists will be held to a higher standard: that ordinarily expected of fellow doctors in that specialty. However, if you, a generalist, assume the duties normally performed by a specialist, the law will consider that you are representing yourself as capable of functioning at that level. In the above case, if generalists do not regularly read their own x-rays and you, a family physician, choose to do so, you will be held to the standard of a radiologist. Choice B is incorrect because “best judgment” is not a legal standard that governs malpractice matters.

The legal duty owed by doctors to their patients is that of reasonable care, defined as that level of care expected of the reasonably competent doctor—that is, a professional standard, not that of a reasonably prudent layperson, the latter being the standard used in negligence actions. Thus, Alabama has held that physicians must “exercise such reasonable care, diligence, and skill as reasonably competent physicians” would exercise in the same or similar circumstances (Keebler v. Winfield Carraway Hospital, 531 So.2d 841 [Ala. 1988]). An Illinois court used similar words: “[A] physician must possess and apply the knowledge, skill, and care of a reasonably well-qualified physician in the relevant medical community” (Purtill v. Hess, 489 N.E.2d 867 [Ill. 1986]). And in Hawaii, “the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony” (Craft v. Peebles, 893 P.2d 138 [Haw. 1995]).

While the professional standard applies to injuries arising out of medical care, the “reasonable person” standard continues to govern non–health care activities such as falls on slippery hospital floors. Unfortunately, the distinction may not always be clear. As one author put it, “Sometimes it is difficult to differentiate bad housekeeping and bad medical care, as where rats in a hospital repeatedly bit a comatose patient” (Dobbs, D.B. 2000. The Law of Torts. St. Paul, Minn.: West Group. Chapter 14, referring to Lejeunee v. Rayne Branch Hospital, 556 So.2d 559 [La. 1990]).

The doctor's specialty does matter in legal proceedings addressing the standard of care. The surgeon will be judged according to the community standard of the ordinarily skilled surgeon, and the generalists according to that of other generalists. But there is a separate duty to refer if the case is outside the doctor's field of expertise. If the standard is to refer to a specialist, the family physician who undertakes to personally treat the patient within that specialty will be held to that higher standard. In Simpson v. Davis, for example, a general dentist performed root canal work and was therefore held to the standard of an endodontist (Simpson v. Davis, 549 P.2d 950 [Kan. 1976]).

The law expects doctors to provide reasonable care to their patients, even for conditions arguably outside their specialty. In a recent lawsuit, a gynecologist failed to consider appendicitis in a 32-year-old woman who presented with fever, chills, nausea, and lower abdominal pain. This delay in diagnosis led to rupture. The defendant-gynecologist argued that the diagnosis of a urinary tract infection or a pelvic condition was appropriate given the doctor's specialty. The gynecologist did not document the abdominal and pelvic examinations in detail, and did not obtain an ultrasound study. The trial court entered a verdict for the plaintiff; jury members later confided that the verdict would have been different had the doctor simply included appendicitis in the differential diagnosis (“Not My Specialty.” The Doctor's Advocate, Third Quarter, 2006).

In medicine, there is frequently a minority view as to how things ought to be done, so the standard of care need not necessarily be unanimous. So long as the minority view is held by a respectable group of doctors, the law will accept it as a legitimate alternative. However, this does not mean that any “on-the-fringe” publication on an issue will suffice. A minority view is reflective of a different approach to the same problem, but the care rendered must still comply with the standard of care espoused. In a Texas case, the court was not concerned with whether the practice was that of a respectable minority or a considerable number of physicians, but whether it met the standard. The case involved an augmentation mammoplasty procedure that resulted in silicone leakage. A number of qualified physicians had used that procedure, and this satisfied the court that the standard had been met (Henderson v. Heyer-Schulte Corp. of Santa Barbara, 600 S.W.2d 844 [Tex Civ. App. 1980]).

Finally, courts have in the past considered the locale where the tortious act took place, invoking the so-called “locality rule.” This was based on the belief that different standards of care were applicable in different areas of the country, for example, urban vs. rural. However, this rule has been largely abandoned in favor of a uniform standard, because current medical training and board certifications all adhere to a national standard. But geographic considerations are not entirely irrelevant. Where the local medical facilities lack state-of-the-art equipment or specialists, courts will give due consideration to such conditions. Still, there is always the duty to reasonably transfer to an available specialist or facility, and failure to do so may form the basis of liability.

Question: As a family physician with a large practice, you own your own x-ray machine, and you regularly obtain and interpret your patients' x-rays instead of having a radiologist read them. Assume that the community standard is for radiologists rather than generalists to read x-rays. What level of accuracy or standard of care will you be held to?

A. That of a generalist.

B. That of a reasonable doctor using his or her best judgment.

C. That of a radiologist.

D. A standard between that of a radiologist and a generalist.

E. That of an x-ray technician whose expertise in radiology is similar to yours.

Answer: C. A doctor is usually held to the objective standards of fellow doctors, given the circumstances of the case. Specialists will be held to a higher standard: that ordinarily expected of fellow doctors in that specialty. However, if you, a generalist, assume the duties normally performed by a specialist, the law will consider that you are representing yourself as capable of functioning at that level. In the above case, if generalists do not regularly read their own x-rays and you, a family physician, choose to do so, you will be held to the standard of a radiologist. Choice B is incorrect because “best judgment” is not a legal standard that governs malpractice matters.

The legal duty owed by doctors to their patients is that of reasonable care, defined as that level of care expected of the reasonably competent doctor—that is, a professional standard, not that of a reasonably prudent layperson, the latter being the standard used in negligence actions. Thus, Alabama has held that physicians must “exercise such reasonable care, diligence, and skill as reasonably competent physicians” would exercise in the same or similar circumstances (Keebler v. Winfield Carraway Hospital, 531 So.2d 841 [Ala. 1988]). An Illinois court used similar words: “[A] physician must possess and apply the knowledge, skill, and care of a reasonably well-qualified physician in the relevant medical community” (Purtill v. Hess, 489 N.E.2d 867 [Ill. 1986]). And in Hawaii, “the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony” (Craft v. Peebles, 893 P.2d 138 [Haw. 1995]).

While the professional standard applies to injuries arising out of medical care, the “reasonable person” standard continues to govern non–health care activities such as falls on slippery hospital floors. Unfortunately, the distinction may not always be clear. As one author put it, “Sometimes it is difficult to differentiate bad housekeeping and bad medical care, as where rats in a hospital repeatedly bit a comatose patient” (Dobbs, D.B. 2000. The Law of Torts. St. Paul, Minn.: West Group. Chapter 14, referring to Lejeunee v. Rayne Branch Hospital, 556 So.2d 559 [La. 1990]).

The doctor's specialty does matter in legal proceedings addressing the standard of care. The surgeon will be judged according to the community standard of the ordinarily skilled surgeon, and the generalists according to that of other generalists. But there is a separate duty to refer if the case is outside the doctor's field of expertise. If the standard is to refer to a specialist, the family physician who undertakes to personally treat the patient within that specialty will be held to that higher standard. In Simpson v. Davis, for example, a general dentist performed root canal work and was therefore held to the standard of an endodontist (Simpson v. Davis, 549 P.2d 950 [Kan. 1976]).

The law expects doctors to provide reasonable care to their patients, even for conditions arguably outside their specialty. In a recent lawsuit, a gynecologist failed to consider appendicitis in a 32-year-old woman who presented with fever, chills, nausea, and lower abdominal pain. This delay in diagnosis led to rupture. The defendant-gynecologist argued that the diagnosis of a urinary tract infection or a pelvic condition was appropriate given the doctor's specialty. The gynecologist did not document the abdominal and pelvic examinations in detail, and did not obtain an ultrasound study. The trial court entered a verdict for the plaintiff; jury members later confided that the verdict would have been different had the doctor simply included appendicitis in the differential diagnosis (“Not My Specialty.” The Doctor's Advocate, Third Quarter, 2006).

In medicine, there is frequently a minority view as to how things ought to be done, so the standard of care need not necessarily be unanimous. So long as the minority view is held by a respectable group of doctors, the law will accept it as a legitimate alternative. However, this does not mean that any “on-the-fringe” publication on an issue will suffice. A minority view is reflective of a different approach to the same problem, but the care rendered must still comply with the standard of care espoused. In a Texas case, the court was not concerned with whether the practice was that of a respectable minority or a considerable number of physicians, but whether it met the standard. The case involved an augmentation mammoplasty procedure that resulted in silicone leakage. A number of qualified physicians had used that procedure, and this satisfied the court that the standard had been met (Henderson v. Heyer-Schulte Corp. of Santa Barbara, 600 S.W.2d 844 [Tex Civ. App. 1980]).

Finally, courts have in the past considered the locale where the tortious act took place, invoking the so-called “locality rule.” This was based on the belief that different standards of care were applicable in different areas of the country, for example, urban vs. rural. However, this rule has been largely abandoned in favor of a uniform standard, because current medical training and board certifications all adhere to a national standard. But geographic considerations are not entirely irrelevant. Where the local medical facilities lack state-of-the-art equipment or specialists, courts will give due consideration to such conditions. Still, there is always the duty to reasonably transfer to an available specialist or facility, and failure to do so may form the basis of liability.

Question: Regarding physician liability arising from medication injuries, which of the following is most accurate?

A. Doctor is liable if drug was prescribed for unapproved off-label use.

B. Doctor is liable for failing to warn of significant risks.

C. Doctor is liable for failing to warn of all complications.

D. Patient did not ask about side effects and therefore was contributorily negligent.

E. Liability will attach to manufacturer for a “defective product.”

Answer: B. The informed consent doctrine requires that physicians discuss all material risks, including rare but serious risks. Choice A is incorrect because prescribing a drug for an “off-label” use may be an acceptable practice. However, it is prudent for the doctor to document in the records the reason for using the drug. Choice C is overly broad. A warning is required for all material risks (i.e., those that significantly affect the patient's decision to accept or reject the recommended treatment), but a warning is not necessary for all risks.

Patients are assumed to have little or no knowledge of medications, and they have no legal duty to inquire about side effects. The doctor, on the other hand, has an affirmative duty to warn of these side effects. In a malpractice case alleging lack of informed consent due to failure to warn, the defense cannot plead contributory negligence, so choice D is incorrect. Finally, E is also incorrect. The “learned intermediary” doctrine stipulates that the doctor, not the pharmaceutical company, is liable for medication-related injuries as he/she is a learned professional who directly communicates with the patient and who does the actual prescribing. This puts the doctor in the hot seat for an adverse drug reaction, unless the drug company has been negligent in identifying and/or communicating the risk.

Disclosure of Material Risks

In order for patients to meaningfully give their consent to treatment, they should have sufficient information regarding the doctor's treatment plans. The consent must also be given voluntarily. The notion of patient autonomy is so entrenched that the law imposes upon the practitioner the duty to disclose three fundamental aspects of treatment, easily remembered by the mnemonic PAR (P = procedure [or medication/device], A = alternatives, R = risks).

What constitutes a material risk is at the heart of the controversy surrounding the informed consent doctrine. Generally, the patient should be informed of all serious risks, even if unusual or rare. However, in one court case, a 1% risk of hearing loss required disclosure (Scott v. Wilson, 396 S.W.2d 532 [Tex. Civ. App. 1965]), whereas in another, the court appeared to say that a 1.5% chance of visual loss did not (Yeats v. Harms, 393 P.2d 982 [Kan. 1964]). The California Supreme Court has stated that “material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient's position when deciding to accept or reject the recommended medical procedure,” that “a (material) fact must also be one which is not commonly appreciated,” and that the scope of disclosure may be expanded in patients with “unique concerns or lack of familiarity with medical procedures” (Truman v. Thomas, 27 Cal.3d 285 [1980]). There is, however, no legal requirement to deliver a “mini-course in medical science” (Cobbs v. Grant, 8 Cal.3d 229 [1972]).

Warren v. Schecter is one of the most dramatic cases to confront the material risk issue. The plaintiff won a $9.6 million judgment against the doctor for his failure to disclose risk of osteoporosis (Warren v. Schecter, 67 Cal.Rptr.2d 573 [Cal. 1997]). Dr. Schecter had performed gastric surgery on Janet Warren for peptic ulcer disease, and had warned the patient of the risks of bowel obstruction, dumping syndrome, and anesthetic death. He did not believe osteoporosis, osteomalacia, and bone pain were risks of surgery, and so did not discuss those risks with her. The plaintiff testified at trial that had Dr. Schecter warned of the risk of metabolic bone disease, she would not have consented to surgery. A second operation was undertaken because she developed postoperative dumping syndrome and alkaline reflux gastritis, and the surgeon again failed to advise her of the risk of metabolic bone disease. She again asserted that she would not have consented to the second surgery had she been duly advised.

The plaintiff subsequently developed severe osteoporotic fractures, and filed a malpractice lawsuit alleging that Dr. Schecter was liable under an informed consent theory for performing surgery without advising her of the risk of bone complications. The jury found that Dr. Schecter did not disclose to Ms. Warren all relevant information that would have enabled her to make an informed decision regarding surgery and that a reasonably prudent person in her position would not have consented to surgery if adequately informed of all the significant perils.

Other Aspects of Disclosure

Besides risks associated with surgery or a medication, courts have also looked at other aspects of disclosure in the doctor-patient relationship. Some litigated examples include disclosing the limited experience of a neurosurgeon (Johnson v. Kokemoor, 545 N.W.2d 495 [Wis. 1996]), financial incentives amounting to a breach of fiduciary responsibility (Moore v. The Regents of the University of California, 793 P.2d 479 [Cal. 1990]), and a surgeon's disclosure of his positive HIV status (Estate of Behringer v. The Medical Center at Princeton, 192 A.2d 1251 [N.J. Super. 1991]) or alcoholism (Hidding v. Williams, 578 So.2d 1192 [La.App. 1991]). However, in Arato v. Avedon, the California Supreme Court held that the law did not require physicians to inform their terminally ill patients of their prognosis and life expectancy (Arato v. Avedon, 858 P.2d 598 [Cal. 1993]).

An example of statutory law regarding informed consent is found in Hawaii Revised Statutes §671-3. Amended by the 2003 legislature, the statute mandates disclosure of “recognized material risks of serious complications or mortality” but does not define the word “material.” This amended language replaced the earlier version's “recognized, serious, possible risks, complications and anticipated benefits,” arguably lightening the doctor's duty regarding risk disclosure. In reality, the new language is unlikely to have a significant practical effect. An earlier 1976 version of the law merely required the disclosure of “probable risks and effects.”

Contact the author at [email protected].

Question: Regarding physician liability arising from medication injuries, which of the following is most accurate?

A. Doctor is liable if drug was prescribed for unapproved off-label use.

B. Doctor is liable for failing to warn of significant risks.

C. Doctor is liable for failing to warn of all complications.

D. Patient did not ask about side effects and therefore was contributorily negligent.

E. Liability will attach to manufacturer for a “defective product.”

Answer: B. The informed consent doctrine requires that physicians discuss all material risks, including rare but serious risks. Choice A is incorrect because prescribing a drug for an “off-label” use may be an acceptable practice. However, it is prudent for the doctor to document in the records the reason for using the drug. Choice C is overly broad. A warning is required for all material risks (i.e., those that significantly affect the patient's decision to accept or reject the recommended treatment), but a warning is not necessary for all risks.

Patients are assumed to have little or no knowledge of medications, and they have no legal duty to inquire about side effects. The doctor, on the other hand, has an affirmative duty to warn of these side effects. In a malpractice case alleging lack of informed consent due to failure to warn, the defense cannot plead contributory negligence, so choice D is incorrect. Finally, E is also incorrect. The “learned intermediary” doctrine stipulates that the doctor, not the pharmaceutical company, is liable for medication-related injuries as he/she is a learned professional who directly communicates with the patient and who does the actual prescribing. This puts the doctor in the hot seat for an adverse drug reaction, unless the drug company has been negligent in identifying and/or communicating the risk.

Disclosure of Material Risks

In order for patients to meaningfully give their consent to treatment, they should have sufficient information regarding the doctor's treatment plans. The consent must also be given voluntarily. The notion of patient autonomy is so entrenched that the law imposes upon the practitioner the duty to disclose three fundamental aspects of treatment, easily remembered by the mnemonic PAR (P = procedure [or medication/device], A = alternatives, R = risks).

What constitutes a material risk is at the heart of the controversy surrounding the informed consent doctrine. Generally, the patient should be informed of all serious risks, even if unusual or rare. However, in one court case, a 1% risk of hearing loss required disclosure (Scott v. Wilson, 396 S.W.2d 532 [Tex. Civ. App. 1965]), whereas in another, the court appeared to say that a 1.5% chance of visual loss did not (Yeats v. Harms, 393 P.2d 982 [Kan. 1964]). The California Supreme Court has stated that “material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient's position when deciding to accept or reject the recommended medical procedure,” that “a (material) fact must also be one which is not commonly appreciated,” and that the scope of disclosure may be expanded in patients with “unique concerns or lack of familiarity with medical procedures” (Truman v. Thomas, 27 Cal.3d 285 [1980]). There is, however, no legal requirement to deliver a “mini-course in medical science” (Cobbs v. Grant, 8 Cal.3d 229 [1972]).

Warren v. Schecter is one of the most dramatic cases to confront the material risk issue. The plaintiff won a $9.6 million judgment against the doctor for his failure to disclose risk of osteoporosis (Warren v. Schecter, 67 Cal.Rptr.2d 573 [Cal. 1997]). Dr. Schecter had performed gastric surgery on Janet Warren for peptic ulcer disease, and had warned the patient of the risks of bowel obstruction, dumping syndrome, and anesthetic death. He did not believe osteoporosis, osteomalacia, and bone pain were risks of surgery, and so did not discuss those risks with her. The plaintiff testified at trial that had Dr. Schecter warned of the risk of metabolic bone disease, she would not have consented to surgery. A second operation was undertaken because she developed postoperative dumping syndrome and alkaline reflux gastritis, and the surgeon again failed to advise her of the risk of metabolic bone disease. She again asserted that she would not have consented to the second surgery had she been duly advised.

The plaintiff subsequently developed severe osteoporotic fractures, and filed a malpractice lawsuit alleging that Dr. Schecter was liable under an informed consent theory for performing surgery without advising her of the risk of bone complications. The jury found that Dr. Schecter did not disclose to Ms. Warren all relevant information that would have enabled her to make an informed decision regarding surgery and that a reasonably prudent person in her position would not have consented to surgery if adequately informed of all the significant perils.

Other Aspects of Disclosure

Besides risks associated with surgery or a medication, courts have also looked at other aspects of disclosure in the doctor-patient relationship. Some litigated examples include disclosing the limited experience of a neurosurgeon (Johnson v. Kokemoor, 545 N.W.2d 495 [Wis. 1996]), financial incentives amounting to a breach of fiduciary responsibility (Moore v. The Regents of the University of California, 793 P.2d 479 [Cal. 1990]), and a surgeon's disclosure of his positive HIV status (Estate of Behringer v. The Medical Center at Princeton, 192 A.2d 1251 [N.J. Super. 1991]) or alcoholism (Hidding v. Williams, 578 So.2d 1192 [La.App. 1991]). However, in Arato v. Avedon, the California Supreme Court held that the law did not require physicians to inform their terminally ill patients of their prognosis and life expectancy (Arato v. Avedon, 858 P.2d 598 [Cal. 1993]).

An example of statutory law regarding informed consent is found in Hawaii Revised Statutes §671-3. Amended by the 2003 legislature, the statute mandates disclosure of “recognized material risks of serious complications or mortality” but does not define the word “material.” This amended language replaced the earlier version's “recognized, serious, possible risks, complications and anticipated benefits,” arguably lightening the doctor's duty regarding risk disclosure. In reality, the new language is unlikely to have a significant practical effect. An earlier 1976 version of the law merely required the disclosure of “probable risks and effects.”

Contact the author at [email protected].

Question: Regarding physician liability arising from medication injuries, which of the following is most accurate?

A. Doctor is liable if drug was prescribed for unapproved off-label use.

B. Doctor is liable for failing to warn of significant risks.

C. Doctor is liable for failing to warn of all complications.

D. Patient did not ask about side effects and therefore was contributorily negligent.

E. Liability will attach to manufacturer for a “defective product.”

Answer: B. The informed consent doctrine requires that physicians discuss all material risks, including rare but serious risks. Choice A is incorrect because prescribing a drug for an “off-label” use may be an acceptable practice. However, it is prudent for the doctor to document in the records the reason for using the drug. Choice C is overly broad. A warning is required for all material risks (i.e., those that significantly affect the patient's decision to accept or reject the recommended treatment), but a warning is not necessary for all risks.

Patients are assumed to have little or no knowledge of medications, and they have no legal duty to inquire about side effects. The doctor, on the other hand, has an affirmative duty to warn of these side effects. In a malpractice case alleging lack of informed consent due to failure to warn, the defense cannot plead contributory negligence, so choice D is incorrect. Finally, E is also incorrect. The “learned intermediary” doctrine stipulates that the doctor, not the pharmaceutical company, is liable for medication-related injuries as he/she is a learned professional who directly communicates with the patient and who does the actual prescribing. This puts the doctor in the hot seat for an adverse drug reaction, unless the drug company has been negligent in identifying and/or communicating the risk.

Disclosure of Material Risks

In order for patients to meaningfully give their consent to treatment, they should have sufficient information regarding the doctor's treatment plans. The consent must also be given voluntarily. The notion of patient autonomy is so entrenched that the law imposes upon the practitioner the duty to disclose three fundamental aspects of treatment, easily remembered by the mnemonic PAR (P = procedure [or medication/device], A = alternatives, R = risks).

What constitutes a material risk is at the heart of the controversy surrounding the informed consent doctrine. Generally, the patient should be informed of all serious risks, even if unusual or rare. However, in one court case, a 1% risk of hearing loss required disclosure (Scott v. Wilson, 396 S.W.2d 532 [Tex. Civ. App. 1965]), whereas in another, the court appeared to say that a 1.5% chance of visual loss did not (Yeats v. Harms, 393 P.2d 982 [Kan. 1964]). The California Supreme Court has stated that “material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient's position when deciding to accept or reject the recommended medical procedure,” that “a (material) fact must also be one which is not commonly appreciated,” and that the scope of disclosure may be expanded in patients with “unique concerns or lack of familiarity with medical procedures” (Truman v. Thomas, 27 Cal.3d 285 [1980]). There is, however, no legal requirement to deliver a “mini-course in medical science” (Cobbs v. Grant, 8 Cal.3d 229 [1972]).

Warren v. Schecter is one of the most dramatic cases to confront the material risk issue. The plaintiff won a $9.6 million judgment against the doctor for his failure to disclose risk of osteoporosis (Warren v. Schecter, 67 Cal.Rptr.2d 573 [Cal. 1997]). Dr. Schecter had performed gastric surgery on Janet Warren for peptic ulcer disease, and had warned the patient of the risks of bowel obstruction, dumping syndrome, and anesthetic death. He did not believe osteoporosis, osteomalacia, and bone pain were risks of surgery, and so did not discuss those risks with her. The plaintiff testified at trial that had Dr. Schecter warned of the risk of metabolic bone disease, she would not have consented to surgery. A second operation was undertaken because she developed postoperative dumping syndrome and alkaline reflux gastritis, and the surgeon again failed to advise her of the risk of metabolic bone disease. She again asserted that she would not have consented to the second surgery had she been duly advised.

The plaintiff subsequently developed severe osteoporotic fractures, and filed a malpractice lawsuit alleging that Dr. Schecter was liable under an informed consent theory for performing surgery without advising her of the risk of bone complications. The jury found that Dr. Schecter did not disclose to Ms. Warren all relevant information that would have enabled her to make an informed decision regarding surgery and that a reasonably prudent person in her position would not have consented to surgery if adequately informed of all the significant perils.

Other Aspects of Disclosure

Besides risks associated with surgery or a medication, courts have also looked at other aspects of disclosure in the doctor-patient relationship. Some litigated examples include disclosing the limited experience of a neurosurgeon (Johnson v. Kokemoor, 545 N.W.2d 495 [Wis. 1996]), financial incentives amounting to a breach of fiduciary responsibility (Moore v. The Regents of the University of California, 793 P.2d 479 [Cal. 1990]), and a surgeon's disclosure of his positive HIV status (Estate of Behringer v. The Medical Center at Princeton, 192 A.2d 1251 [N.J. Super. 1991]) or alcoholism (Hidding v. Williams, 578 So.2d 1192 [La.App. 1991]). However, in Arato v. Avedon, the California Supreme Court held that the law did not require physicians to inform their terminally ill patients of their prognosis and life expectancy (Arato v. Avedon, 858 P.2d 598 [Cal. 1993]).

An example of statutory law regarding informed consent is found in Hawaii Revised Statutes §671-3. Amended by the 2003 legislature, the statute mandates disclosure of “recognized material risks of serious complications or mortality” but does not define the word “material.” This amended language replaced the earlier version's “recognized, serious, possible risks, complications and anticipated benefits,” arguably lightening the doctor's duty regarding risk disclosure. In reality, the new language is unlikely to have a significant practical effect. An earlier 1976 version of the law merely required the disclosure of “probable risks and effects.”

Contact the author at [email protected].

Question: Your patient tests positive for HIV and, despite repeated counseling, refuses to disclose this to his wife, who is also your patient. You assume husband and wife engage in unprotected sex. Select the single best answer:

A. You have both a moral and legal duty to inform your patient's wife.

B. The patient will successfully sue you if you breach confidentiality.

C. The patient's wife will successfully sue you if you do not warn her and she suffers harm.

D. You are legally obligated to disclose the information to health authorities.

E. All choices are incorrect.

Answer: E. Because a doctor must respect a patient's confidential information, medical information generally cannot be disclosed without consent. However, under some circumstances, a doctor is obligated by law or because of a higher competing interest to breach confidentiality. Examples include cases of suspected child abuse and certain public health hazards such as infectious diseases.

State law forbids the release of HIV records except in very special situations, and frequently permits but does not mandate reporting to state health authorities. Direct disclosure to third parties at risk is generally not provided by statute. However, California is an exception; the state allows the attending physician to disclose such information to “a person reasonably believed to be the spouse … a sexual partner or a person with whom the patient has shared the use of hypodermic needles, or to the local health officer” (California Health and Safety Code §121015[a]). This law is permissive, allowing but not requiring the physician to disclose.

In the hypothetical scenario described above, choice E is best. Although it could be argued that there may be a moral duty for the physician to directly inform the wife, especially since she is also a patient, legal duty is a different matter. Neither the wife nor the infected patient will necessarily be successful in a lawsuit against the doctor, depending in part on the jurisdiction and the prescribed manner of reporting/disclosure. Because statutes vary, physicians would do well to consult with state health authorities or a malpractice risk manager on the proper course of action in any given case.

Historically, patient confidentiality was part of an ethical code that all doctors abided in. The tradition dates back to the Hippocratic Oath, which states in part: “Whatever in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge as reckoning that all should be kept secret.”

Notwithstanding Hippocrates (and HIPAA, its modern progeny, which protects personal health information), the professional duty to protect the secrets of a patient is not an absolute one, and in some situations limited disclosure is morally defensible and legally permissible or even obligatory. Most states require reporting in cases of suspected communicable diseases, impaired driving, child and elder abuse, domestic violence, or weapon injuries.

Even if there is no relevant state regulation, a doctor may have a legal duty to disclose sensitive information to named third parties if actual harm can be prevented through such disclosure. The well-known case of Tarasoff v. Regents of University of California established that where there is threatened harm to a named third party, the practitioner is required to reveal the information to the intended victim (this has been termed the Tarasoff rule). In Tarasoff, a patient confided in the university psychologist his intention to kill his ex-girlfriend. The information, though shared with campus security, was not released to the intended victim, and the patient stabbed her to death 2 months later. The court found the psychologist and the University of California (under respondeat superior) liable, reasoning that the protection of public safety was more important than the sanctity of doctor-patient confidentiality: “We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault…. In this risk-infested society, we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal” (Tarasoff v. Regents of University of California, 551 P.2d 334 [S. Ct. Calif.1976]).

Disclosure to third parties of sensitive patient information may constitute defamation, which is defined as harming a person's reputation through communicating to others a verbal or written falsehood. However, truth is an absolute defense against a defamation claim; alternatively, the doctor may have a qualified privilege where there is a public health interest. For example, in Simonsen v. Swenson, a physician disclosed a positive syphilis test result that turned out to be an error. In the defamation suit that followed, the court declined to impose liability on the doctor, finding that he was protected in discharging his duty to disclose (Simonsen v. Swenson, 177 N.W. 831 [Neb. 1920]).

As a group, health care professionals ought to be far more circumspect in observing confidentiality. Loose talk, gossip, disclosure of patient identity, or indiscriminate release of medical records are all examples of confidentiality breach. We too often discuss cases, sometimes identifying the patient by name or room and bed number, in public places within earshot of strangers. In a 1995 study that observed 259 one-way elevator trips in five U.S. hospitals, the authors overheard a total of 39 inappropriate comments that took place on 36 rides (13.9% of the trips) (Am. J. Med. 1995;99:190-4). Many of the comments clearly breached patient confidentiality.

Contact the author at [email protected].

Question: Your patient tests positive for HIV and, despite repeated counseling, refuses to disclose this to his wife, who is also your patient. You assume husband and wife engage in unprotected sex. Select the single best answer:

A. You have both a moral and legal duty to inform your patient's wife.

B. The patient will successfully sue you if you breach confidentiality.

C. The patient's wife will successfully sue you if you do not warn her and she suffers harm.

D. You are legally obligated to disclose the information to health authorities.

E. All choices are incorrect.

Answer: E. Because a doctor must respect a patient's confidential information, medical information generally cannot be disclosed without consent. However, under some circumstances, a doctor is obligated by law or because of a higher competing interest to breach confidentiality. Examples include cases of suspected child abuse and certain public health hazards such as infectious diseases.

State law forbids the release of HIV records except in very special situations, and frequently permits but does not mandate reporting to state health authorities. Direct disclosure to third parties at risk is generally not provided by statute. However, California is an exception; the state allows the attending physician to disclose such information to “a person reasonably believed to be the spouse … a sexual partner or a person with whom the patient has shared the use of hypodermic needles, or to the local health officer” (California Health and Safety Code §121015[a]). This law is permissive, allowing but not requiring the physician to disclose.

In the hypothetical scenario described above, choice E is best. Although it could be argued that there may be a moral duty for the physician to directly inform the wife, especially since she is also a patient, legal duty is a different matter. Neither the wife nor the infected patient will necessarily be successful in a lawsuit against the doctor, depending in part on the jurisdiction and the prescribed manner of reporting/disclosure. Because statutes vary, physicians would do well to consult with state health authorities or a malpractice risk manager on the proper course of action in any given case.

Historically, patient confidentiality was part of an ethical code that all doctors abided in. The tradition dates back to the Hippocratic Oath, which states in part: “Whatever in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge as reckoning that all should be kept secret.”

Notwithstanding Hippocrates (and HIPAA, its modern progeny, which protects personal health information), the professional duty to protect the secrets of a patient is not an absolute one, and in some situations limited disclosure is morally defensible and legally permissible or even obligatory. Most states require reporting in cases of suspected communicable diseases, impaired driving, child and elder abuse, domestic violence, or weapon injuries.

Even if there is no relevant state regulation, a doctor may have a legal duty to disclose sensitive information to named third parties if actual harm can be prevented through such disclosure. The well-known case of Tarasoff v. Regents of University of California established that where there is threatened harm to a named third party, the practitioner is required to reveal the information to the intended victim (this has been termed the Tarasoff rule). In Tarasoff, a patient confided in the university psychologist his intention to kill his ex-girlfriend. The information, though shared with campus security, was not released to the intended victim, and the patient stabbed her to death 2 months later. The court found the psychologist and the University of California (under respondeat superior) liable, reasoning that the protection of public safety was more important than the sanctity of doctor-patient confidentiality: “We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault…. In this risk-infested society, we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal” (Tarasoff v. Regents of University of California, 551 P.2d 334 [S. Ct. Calif.1976]).

Disclosure to third parties of sensitive patient information may constitute defamation, which is defined as harming a person's reputation through communicating to others a verbal or written falsehood. However, truth is an absolute defense against a defamation claim; alternatively, the doctor may have a qualified privilege where there is a public health interest. For example, in Simonsen v. Swenson, a physician disclosed a positive syphilis test result that turned out to be an error. In the defamation suit that followed, the court declined to impose liability on the doctor, finding that he was protected in discharging his duty to disclose (Simonsen v. Swenson, 177 N.W. 831 [Neb. 1920]).

As a group, health care professionals ought to be far more circumspect in observing confidentiality. Loose talk, gossip, disclosure of patient identity, or indiscriminate release of medical records are all examples of confidentiality breach. We too often discuss cases, sometimes identifying the patient by name or room and bed number, in public places within earshot of strangers. In a 1995 study that observed 259 one-way elevator trips in five U.S. hospitals, the authors overheard a total of 39 inappropriate comments that took place on 36 rides (13.9% of the trips) (Am. J. Med. 1995;99:190-4). Many of the comments clearly breached patient confidentiality.

Contact the author at [email protected].

Question: Your patient tests positive for HIV and, despite repeated counseling, refuses to disclose this to his wife, who is also your patient. You assume husband and wife engage in unprotected sex. Select the single best answer:

A. You have both a moral and legal duty to inform your patient's wife.

B. The patient will successfully sue you if you breach confidentiality.

C. The patient's wife will successfully sue you if you do not warn her and she suffers harm.

D. You are legally obligated to disclose the information to health authorities.

E. All choices are incorrect.

Answer: E. Because a doctor must respect a patient's confidential information, medical information generally cannot be disclosed without consent. However, under some circumstances, a doctor is obligated by law or because of a higher competing interest to breach confidentiality. Examples include cases of suspected child abuse and certain public health hazards such as infectious diseases.

State law forbids the release of HIV records except in very special situations, and frequently permits but does not mandate reporting to state health authorities. Direct disclosure to third parties at risk is generally not provided by statute. However, California is an exception; the state allows the attending physician to disclose such information to “a person reasonably believed to be the spouse … a sexual partner or a person with whom the patient has shared the use of hypodermic needles, or to the local health officer” (California Health and Safety Code §121015[a]). This law is permissive, allowing but not requiring the physician to disclose.

In the hypothetical scenario described above, choice E is best. Although it could be argued that there may be a moral duty for the physician to directly inform the wife, especially since she is also a patient, legal duty is a different matter. Neither the wife nor the infected patient will necessarily be successful in a lawsuit against the doctor, depending in part on the jurisdiction and the prescribed manner of reporting/disclosure. Because statutes vary, physicians would do well to consult with state health authorities or a malpractice risk manager on the proper course of action in any given case.

Historically, patient confidentiality was part of an ethical code that all doctors abided in. The tradition dates back to the Hippocratic Oath, which states in part: “Whatever in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge as reckoning that all should be kept secret.”

Notwithstanding Hippocrates (and HIPAA, its modern progeny, which protects personal health information), the professional duty to protect the secrets of a patient is not an absolute one, and in some situations limited disclosure is morally defensible and legally permissible or even obligatory. Most states require reporting in cases of suspected communicable diseases, impaired driving, child and elder abuse, domestic violence, or weapon injuries.

Even if there is no relevant state regulation, a doctor may have a legal duty to disclose sensitive information to named third parties if actual harm can be prevented through such disclosure. The well-known case of Tarasoff v. Regents of University of California established that where there is threatened harm to a named third party, the practitioner is required to reveal the information to the intended victim (this has been termed the Tarasoff rule). In Tarasoff, a patient confided in the university psychologist his intention to kill his ex-girlfriend. The information, though shared with campus security, was not released to the intended victim, and the patient stabbed her to death 2 months later. The court found the psychologist and the University of California (under respondeat superior) liable, reasoning that the protection of public safety was more important than the sanctity of doctor-patient confidentiality: “We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault…. In this risk-infested society, we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal” (Tarasoff v. Regents of University of California, 551 P.2d 334 [S. Ct. Calif.1976]).

Disclosure to third parties of sensitive patient information may constitute defamation, which is defined as harming a person's reputation through communicating to others a verbal or written falsehood. However, truth is an absolute defense against a defamation claim; alternatively, the doctor may have a qualified privilege where there is a public health interest. For example, in Simonsen v. Swenson, a physician disclosed a positive syphilis test result that turned out to be an error. In the defamation suit that followed, the court declined to impose liability on the doctor, finding that he was protected in discharging his duty to disclose (Simonsen v. Swenson, 177 N.W. 831 [Neb. 1920]).

As a group, health care professionals ought to be far more circumspect in observing confidentiality. Loose talk, gossip, disclosure of patient identity, or indiscriminate release of medical records are all examples of confidentiality breach. We too often discuss cases, sometimes identifying the patient by name or room and bed number, in public places within earshot of strangers. In a 1995 study that observed 259 one-way elevator trips in five U.S. hospitals, the authors overheard a total of 39 inappropriate comments that took place on 36 rides (13.9% of the trips) (Am. J. Med. 1995;99:190-4). Many of the comments clearly breached patient confidentiality.

Contact the author at [email protected].

Follow-up foul-up leads to metastatic disease

A PRECANCEROUS POLYP was found in the stomach of a 50-year-old man during diagnostic gastroscopy. The pathologist’s report noted that an adjacent or underlying malignant process could not be ruled out and recommended additional tissue sampling. Upon reading the report, the gastroenterologist who had performed the gastroscopy wrote that another biopsy should be done within a few months.

The patient was seen subsequently by his primary care physician, whose office note mentioned the precancerous biopsy findings and indicated that another biopsy was necessary; the physician also wrote that malignancy in the stomach would have to be ruled out eventually. The doctor’s plan called for a repeat gastroscopy to reevaluate the dysplastic polyp. However, neither the primary care physician nor the gastroenterologist took additional steps to order, perform, or refer the patient for a follow-up endoscopy and biopsy of the lesion.

Three years later, the patient developed difficulty swallowing and lost weight rapidly. Diagnostic testing revealed a malignant tumor, at the same location as the polyp, and malignant-appearing lymph nodes.

The patient received a feeding jejunostomy tube and underwent concomitant radiation and chemotherapy. Surgery was planned, but the disease metastasized and was deemed inoperable. Despite additional treatment, the patient died at age 54.

PLAINTIFF’S CLAIM No information about the plaintiff’s claim is available.

DOCTORS’ DEFENSE The primary care physician argued that both he and the gastroenterologist were responsible for making sure the follow-up was done; the gastroenterologist claimed that the primary care physician was solely responsible for follow-up testing.

VERDICT $1.5 million Massachusetts settlement.

COMMENT Poor coordination of care and follow-up of results is a common source of malpractice actions. Keep a paper or electronic “tickler file” for important follow-up issues.

Unaddressed cardiovascular risks prove fatal

A 46-YEAR-OLD MAN went to the hospital, where he was seen by a family practitioner. The physician noted that the patient had a history of smoking, high cholesterol, and thyroid problems.

Early the following month, the patient died of cardiopulmonary arrest. Autopsy results showed arteriosclerotic disease, acute dissection of the coronary plaques, and left ventricular hypertrophy.

PLAINTIFF’S CLAIM The family practitioner failed to take a careful history and prescribe aspirin therapy and cholesterol-lowering medication. The patient should have been referred for a cardiac work-up.

DOCTOR’S DEFENSE The patient was advised of the importance of treatment to correct his condition.

VERDICT $575,000 Michigan settlement.

COMMENT I’m seeing a great increase in cases involving failure to address cardiovascular risk factors. Be sure to thoroughly document refusal of interventions or nonadherence.

Lack of surveillance delays lung cancer diagnosis

A 64-YEAR-OLD MAN was referred to a pulmonary specialist in January by his primary care physician after a computed tomography (CT) scan showed a spiculated density adjacent to the right main-stem bronchus and a prominent right hilar lymph node. The CT scan also revealed a noncalcified nodule in the right middle lobe.

Before examining the patient, the pulmonary specialist ordered a positron emission tomography (PET) scan, which he interpreted as showing no significant uptake and considered negative. He attributed the prominent lymph node to bronchitis and ordered surveillance at 3-month intervals.

A CT scan in May showed no change, but the radiologist noted that “the possibility of malignancy cannot be excluded.” When the patient saw the specialist in early June, the doctor recommended another CT scan in 3 months.

The patient did not return to the specialist until September of the following year. By that time, a CT scan taken a couple of months before (June) as part of preoperative clearance for knee surgery showed that the irregular mass had grown significantly since the CT scan in May of the previous year. A bronchoscopy done in September to evaluate the mass was negative. In November, however, a lymph node biopsy revealed that the patient had metastatic lung cancer. He died about a month later.

PLAINTIFF’S CLAIM Because the patient had a history of smoking and the CT scan revealed a density, the suspicion for cancer should have been high despite a negative PET scan. A specimen should have been obtained by thoracoscopy or thoracotomy to rule out cancer.

THE DEFENSE The pulmonary specialist followed the correct protocol; failure to diagnose cancer at the September visit didn’t affect the outcome because the cancer was already metastatic and incurable. The patient didn’t quit smoking or follow up regularly with his primary care physician. Moreover, the cancer was at least stage IIA when the primary care physician referred the patient to the specialist.

VERDICT Pennsylvania defense verdict.

COMMENT Although a defense verdict was ultimately returned, wouldn’t a “tickler file” or a reminder to the patient (and documentation if the patient failed to follow up as recommended) have been easier?

Follow-up foul-up leads to metastatic disease

A PRECANCEROUS POLYP was found in the stomach of a 50-year-old man during diagnostic gastroscopy. The pathologist’s report noted that an adjacent or underlying malignant process could not be ruled out and recommended additional tissue sampling. Upon reading the report, the gastroenterologist who had performed the gastroscopy wrote that another biopsy should be done within a few months.

The patient was seen subsequently by his primary care physician, whose office note mentioned the precancerous biopsy findings and indicated that another biopsy was necessary; the physician also wrote that malignancy in the stomach would have to be ruled out eventually. The doctor’s plan called for a repeat gastroscopy to reevaluate the dysplastic polyp. However, neither the primary care physician nor the gastroenterologist took additional steps to order, perform, or refer the patient for a follow-up endoscopy and biopsy of the lesion.

Three years later, the patient developed difficulty swallowing and lost weight rapidly. Diagnostic testing revealed a malignant tumor, at the same location as the polyp, and malignant-appearing lymph nodes.

The patient received a feeding jejunostomy tube and underwent concomitant radiation and chemotherapy. Surgery was planned, but the disease metastasized and was deemed inoperable. Despite additional treatment, the patient died at age 54.

PLAINTIFF’S CLAIM No information about the plaintiff’s claim is available.

DOCTORS’ DEFENSE The primary care physician argued that both he and the gastroenterologist were responsible for making sure the follow-up was done; the gastroenterologist claimed that the primary care physician was solely responsible for follow-up testing.

VERDICT $1.5 million Massachusetts settlement.

COMMENT Poor coordination of care and follow-up of results is a common source of malpractice actions. Keep a paper or electronic “tickler file” for important follow-up issues.

Unaddressed cardiovascular risks prove fatal

A 46-YEAR-OLD MAN went to the hospital, where he was seen by a family practitioner. The physician noted that the patient had a history of smoking, high cholesterol, and thyroid problems.

Early the following month, the patient died of cardiopulmonary arrest. Autopsy results showed arteriosclerotic disease, acute dissection of the coronary plaques, and left ventricular hypertrophy.

PLAINTIFF’S CLAIM The family practitioner failed to take a careful history and prescribe aspirin therapy and cholesterol-lowering medication. The patient should have been referred for a cardiac work-up.

DOCTOR’S DEFENSE The patient was advised of the importance of treatment to correct his condition.

VERDICT $575,000 Michigan settlement.

COMMENT I’m seeing a great increase in cases involving failure to address cardiovascular risk factors. Be sure to thoroughly document refusal of interventions or nonadherence.

Lack of surveillance delays lung cancer diagnosis

A 64-YEAR-OLD MAN was referred to a pulmonary specialist in January by his primary care physician after a computed tomography (CT) scan showed a spiculated density adjacent to the right main-stem bronchus and a prominent right hilar lymph node. The CT scan also revealed a noncalcified nodule in the right middle lobe.

Before examining the patient, the pulmonary specialist ordered a positron emission tomography (PET) scan, which he interpreted as showing no significant uptake and considered negative. He attributed the prominent lymph node to bronchitis and ordered surveillance at 3-month intervals.

A CT scan in May showed no change, but the radiologist noted that “the possibility of malignancy cannot be excluded.” When the patient saw the specialist in early June, the doctor recommended another CT scan in 3 months.

The patient did not return to the specialist until September of the following year. By that time, a CT scan taken a couple of months before (June) as part of preoperative clearance for knee surgery showed that the irregular mass had grown significantly since the CT scan in May of the previous year. A bronchoscopy done in September to evaluate the mass was negative. In November, however, a lymph node biopsy revealed that the patient had metastatic lung cancer. He died about a month later.

PLAINTIFF’S CLAIM Because the patient had a history of smoking and the CT scan revealed a density, the suspicion for cancer should have been high despite a negative PET scan. A specimen should have been obtained by thoracoscopy or thoracotomy to rule out cancer.

THE DEFENSE The pulmonary specialist followed the correct protocol; failure to diagnose cancer at the September visit didn’t affect the outcome because the cancer was already metastatic and incurable. The patient didn’t quit smoking or follow up regularly with his primary care physician. Moreover, the cancer was at least stage IIA when the primary care physician referred the patient to the specialist.

VERDICT Pennsylvania defense verdict.

COMMENT Although a defense verdict was ultimately returned, wouldn’t a “tickler file” or a reminder to the patient (and documentation if the patient failed to follow up as recommended) have been easier?

Follow-up foul-up leads to metastatic disease

A PRECANCEROUS POLYP was found in the stomach of a 50-year-old man during diagnostic gastroscopy. The pathologist’s report noted that an adjacent or underlying malignant process could not be ruled out and recommended additional tissue sampling. Upon reading the report, the gastroenterologist who had performed the gastroscopy wrote that another biopsy should be done within a few months.

The patient was seen subsequently by his primary care physician, whose office note mentioned the precancerous biopsy findings and indicated that another biopsy was necessary; the physician also wrote that malignancy in the stomach would have to be ruled out eventually. The doctor’s plan called for a repeat gastroscopy to reevaluate the dysplastic polyp. However, neither the primary care physician nor the gastroenterologist took additional steps to order, perform, or refer the patient for a follow-up endoscopy and biopsy of the lesion.

Three years later, the patient developed difficulty swallowing and lost weight rapidly. Diagnostic testing revealed a malignant tumor, at the same location as the polyp, and malignant-appearing lymph nodes.

The patient received a feeding jejunostomy tube and underwent concomitant radiation and chemotherapy. Surgery was planned, but the disease metastasized and was deemed inoperable. Despite additional treatment, the patient died at age 54.

PLAINTIFF’S CLAIM No information about the plaintiff’s claim is available.

DOCTORS’ DEFENSE The primary care physician argued that both he and the gastroenterologist were responsible for making sure the follow-up was done; the gastroenterologist claimed that the primary care physician was solely responsible for follow-up testing.

VERDICT $1.5 million Massachusetts settlement.

COMMENT Poor coordination of care and follow-up of results is a common source of malpractice actions. Keep a paper or electronic “tickler file” for important follow-up issues.

Unaddressed cardiovascular risks prove fatal

A 46-YEAR-OLD MAN went to the hospital, where he was seen by a family practitioner. The physician noted that the patient had a history of smoking, high cholesterol, and thyroid problems.

Early the following month, the patient died of cardiopulmonary arrest. Autopsy results showed arteriosclerotic disease, acute dissection of the coronary plaques, and left ventricular hypertrophy.

PLAINTIFF’S CLAIM The family practitioner failed to take a careful history and prescribe aspirin therapy and cholesterol-lowering medication. The patient should have been referred for a cardiac work-up.

DOCTOR’S DEFENSE The patient was advised of the importance of treatment to correct his condition.

VERDICT $575,000 Michigan settlement.

COMMENT I’m seeing a great increase in cases involving failure to address cardiovascular risk factors. Be sure to thoroughly document refusal of interventions or nonadherence.

Lack of surveillance delays lung cancer diagnosis

A 64-YEAR-OLD MAN was referred to a pulmonary specialist in January by his primary care physician after a computed tomography (CT) scan showed a spiculated density adjacent to the right main-stem bronchus and a prominent right hilar lymph node. The CT scan also revealed a noncalcified nodule in the right middle lobe.

Before examining the patient, the pulmonary specialist ordered a positron emission tomography (PET) scan, which he interpreted as showing no significant uptake and considered negative. He attributed the prominent lymph node to bronchitis and ordered surveillance at 3-month intervals.

A CT scan in May showed no change, but the radiologist noted that “the possibility of malignancy cannot be excluded.” When the patient saw the specialist in early June, the doctor recommended another CT scan in 3 months.

The patient did not return to the specialist until September of the following year. By that time, a CT scan taken a couple of months before (June) as part of preoperative clearance for knee surgery showed that the irregular mass had grown significantly since the CT scan in May of the previous year. A bronchoscopy done in September to evaluate the mass was negative. In November, however, a lymph node biopsy revealed that the patient had metastatic lung cancer. He died about a month later.

PLAINTIFF’S CLAIM Because the patient had a history of smoking and the CT scan revealed a density, the suspicion for cancer should have been high despite a negative PET scan. A specimen should have been obtained by thoracoscopy or thoracotomy to rule out cancer.

THE DEFENSE The pulmonary specialist followed the correct protocol; failure to diagnose cancer at the September visit didn’t affect the outcome because the cancer was already metastatic and incurable. The patient didn’t quit smoking or follow up regularly with his primary care physician. Moreover, the cancer was at least stage IIA when the primary care physician referred the patient to the specialist.

VERDICT Pennsylvania defense verdict.

COMMENT Although a defense verdict was ultimately returned, wouldn’t a “tickler file” or a reminder to the patient (and documentation if the patient failed to follow up as recommended) have been easier?

Question: As a general internist with a large practice, you own your own x-ray machine, and you regularly obtain and interpret your patients' x-rays instead of having a radiologist read them. Assume that the community standard is for radiologists rather than internists to read x-rays. What level of accuracy or standard of care will you be held to?

That of a general internist.

That of a reasonable doctor using his or her best judgment.

That of a radiologist.

A standard between that of a radiologist and a general internist.

That of an x-ray technician whose expertise in radiology is similar to yours.

Answer: C. A doctor is usually held to the objective standards of fellow doctors, given the circumstances of the case. Specialists will be held to a higher standard: that ordinarily expected of fellow doctors in that specialty. However, if you, a generalist, assume the duties normally performed by a specialist, the law will consider that you are representing yourself as capable of functioning at that level. In the above case, if internists do not regularly read their own x-rays and you, an internist, choose to do so, you will be held to the standard of a radiologist. Choice B is incorrect because “best judgment” is not a legal standard that governs malpractice matters.

The legal duty owed by doctors to their patients is that of reasonable care, defined as that level of care expected of the reasonably competent doctor—that is, a professional standard, not that of a reasonably prudent layperson, the latter being the standard used in negligence actions. Thus, Alabama has held that physicians must “exercise such reasonable care, diligence, and skill as reasonably competent physicians” would exercise in the same or similar circumstances (Keebler v. Winfield Carraway Hospital, 531 So.2d 841 [Ala. 1988]). An Illinois court used similar words: “[A] physician must possess and apply the knowledge, skill, and care of a reasonably well-qualified physician in the relevant medical community” (Purtill v. Hess, 489 N.E.2d 867 [Ill. 1986]). And in Hawaii, “the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony” (Craft v. Peebles, 893 P.2d 138 [Haw. 1995]).

While the professional standard applies to injuries arising out of medical care, the “reasonable person” standard continues to govern non–health care activities such as falls on slippery hospital floors. Unfortunately, the distinction may not always be clear. As one author put it, “Sometimes it is difficult to differentiate bad housekeeping and bad medical care, as where rats in a hospital repeatedly bit a comatose patient” (Dobbs, D.B. 2000. The Law of Torts. St. Paul, Minn.: West Group. Chapter 14, referring to Lejeunee v. Rayne Branch Hospital, 556 So.2d 559 [La. 1990]).

The doctor's specialty does matter in legal proceedings addressing the standard of care. The surgeon will be judged according to the community standard of the ordinarily skilled surgeon, and the internist according to that of other internists. But there is a separate duty to refer if the case is outside the doctor's field of expertise. If the standard is to refer to a specialist, the internist who undertakes to personally treat the patient within that specialty will be held to that higher standard. In Simpson v. Davis, for example, a general dentist performed root canal work and was therefore held to the standard of an endodontist (Simpson v. Davis, 549 P.2d 950 [Kan. 1976]).

The law expects doctors to provide reasonable care to their patients, even for conditions arguably outside their specialty. In a recent lawsuit, a gynecologist failed to consider appendicitis in a 32-year-old woman who presented with fever, chills, nausea, and lower abdominal pain. This delay in diagnosis led to rupture. The defendant-gynecologist argued that the diagnosis of a urinary tract infection or a pelvic condition was appropriate given the doctor's specialty. The gynecologist did not document the abdominal and pelvic examinations in detail, and did not obtain an ultrasound study. The trial court entered a verdict for the plaintiff; jury members later confided that the verdict would have been different had the doctor simply included appendicitis in the differential diagnosis (“Not My Specialty.” The Doctor's Advocate, Third Quarter, 2006).

In medicine, there is frequently a minority view as to how things ought to be done, so the standard of care need not necessarily be unanimous. So long as the minority view is held by a respectable group of doctors, the law will accept it as a legitimate alternative. However, this does not mean that any “on-the-fringe” publication on an issue will suffice. A minority view is reflective of a different approach to the same problem, but the care rendered must still comply with the standard of care espoused. In a Texas case, the court was not concerned with whether the practice was that of a respectable minority or a considerable number of physicians, but whether it met the standard. The case involved an augmentation mammoplasty procedure that resulted in silicone leakage. A number of qualified physicians had used that procedure, and this satisfied the court that the standard had been met (Henderson v. Heyer-Schulte Corp. of Santa Barbara, 600 S.W.2d 844 [Tex Civ. App. 1980]).

Finally, courts have in the past considered the locale where the tortious act took place, invoking the so-called “locality rule.” This was based on the belief that different standards of care were applicable in different areas of the country, for example, urban vs. rural. However, this rule has been largely abandoned in favor of a uniform standard, because current medical training and board certifications all adhere to a national standard. But geographic considerations are not entirely irrelevant. Where the local medical facilities lack state-of-the-art equipment or specialists, courts will give due consideration to such conditions. Still, there is always the duty to reasonably transfer to an available specialist or facility, and failure to do so may form the basis of liability.

Contact the author at [email protected].

Question: As a general internist with a large practice, you own your own x-ray machine, and you regularly obtain and interpret your patients' x-rays instead of having a radiologist read them. Assume that the community standard is for radiologists rather than internists to read x-rays. What level of accuracy or standard of care will you be held to?

That of a general internist.

That of a reasonable doctor using his or her best judgment.

That of a radiologist.

A standard between that of a radiologist and a general internist.

That of an x-ray technician whose expertise in radiology is similar to yours.

Answer: C. A doctor is usually held to the objective standards of fellow doctors, given the circumstances of the case. Specialists will be held to a higher standard: that ordinarily expected of fellow doctors in that specialty. However, if you, a generalist, assume the duties normally performed by a specialist, the law will consider that you are representing yourself as capable of functioning at that level. In the above case, if internists do not regularly read their own x-rays and you, an internist, choose to do so, you will be held to the standard of a radiologist. Choice B is incorrect because “best judgment” is not a legal standard that governs malpractice matters.

The legal duty owed by doctors to their patients is that of reasonable care, defined as that level of care expected of the reasonably competent doctor—that is, a professional standard, not that of a reasonably prudent layperson, the latter being the standard used in negligence actions. Thus, Alabama has held that physicians must “exercise such reasonable care, diligence, and skill as reasonably competent physicians” would exercise in the same or similar circumstances (Keebler v. Winfield Carraway Hospital, 531 So.2d 841 [Ala. 1988]). An Illinois court used similar words: “[A] physician must possess and apply the knowledge, skill, and care of a reasonably well-qualified physician in the relevant medical community” (Purtill v. Hess, 489 N.E.2d 867 [Ill. 1986]). And in Hawaii, “the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony” (Craft v. Peebles, 893 P.2d 138 [Haw. 1995]).

While the professional standard applies to injuries arising out of medical care, the “reasonable person” standard continues to govern non–health care activities such as falls on slippery hospital floors. Unfortunately, the distinction may not always be clear. As one author put it, “Sometimes it is difficult to differentiate bad housekeeping and bad medical care, as where rats in a hospital repeatedly bit a comatose patient” (Dobbs, D.B. 2000. The Law of Torts. St. Paul, Minn.: West Group. Chapter 14, referring to Lejeunee v. Rayne Branch Hospital, 556 So.2d 559 [La. 1990]).

The doctor's specialty does matter in legal proceedings addressing the standard of care. The surgeon will be judged according to the community standard of the ordinarily skilled surgeon, and the internist according to that of other internists. But there is a separate duty to refer if the case is outside the doctor's field of expertise. If the standard is to refer to a specialist, the internist who undertakes to personally treat the patient within that specialty will be held to that higher standard. In Simpson v. Davis, for example, a general dentist performed root canal work and was therefore held to the standard of an endodontist (Simpson v. Davis, 549 P.2d 950 [Kan. 1976]).

The law expects doctors to provide reasonable care to their patients, even for conditions arguably outside their specialty. In a recent lawsuit, a gynecologist failed to consider appendicitis in a 32-year-old woman who presented with fever, chills, nausea, and lower abdominal pain. This delay in diagnosis led to rupture. The defendant-gynecologist argued that the diagnosis of a urinary tract infection or a pelvic condition was appropriate given the doctor's specialty. The gynecologist did not document the abdominal and pelvic examinations in detail, and did not obtain an ultrasound study. The trial court entered a verdict for the plaintiff; jury members later confided that the verdict would have been different had the doctor simply included appendicitis in the differential diagnosis (“Not My Specialty.” The Doctor's Advocate, Third Quarter, 2006).

In medicine, there is frequently a minority view as to how things ought to be done, so the standard of care need not necessarily be unanimous. So long as the minority view is held by a respectable group of doctors, the law will accept it as a legitimate alternative. However, this does not mean that any “on-the-fringe” publication on an issue will suffice. A minority view is reflective of a different approach to the same problem, but the care rendered must still comply with the standard of care espoused. In a Texas case, the court was not concerned with whether the practice was that of a respectable minority or a considerable number of physicians, but whether it met the standard. The case involved an augmentation mammoplasty procedure that resulted in silicone leakage. A number of qualified physicians had used that procedure, and this satisfied the court that the standard had been met (Henderson v. Heyer-Schulte Corp. of Santa Barbara, 600 S.W.2d 844 [Tex Civ. App. 1980]).

Finally, courts have in the past considered the locale where the tortious act took place, invoking the so-called “locality rule.” This was based on the belief that different standards of care were applicable in different areas of the country, for example, urban vs. rural. However, this rule has been largely abandoned in favor of a uniform standard, because current medical training and board certifications all adhere to a national standard. But geographic considerations are not entirely irrelevant. Where the local medical facilities lack state-of-the-art equipment or specialists, courts will give due consideration to such conditions. Still, there is always the duty to reasonably transfer to an available specialist or facility, and failure to do so may form the basis of liability.

Contact the author at [email protected].

Question: As a general internist with a large practice, you own your own x-ray machine, and you regularly obtain and interpret your patients' x-rays instead of having a radiologist read them. Assume that the community standard is for radiologists rather than internists to read x-rays. What level of accuracy or standard of care will you be held to?

That of a general internist.

That of a reasonable doctor using his or her best judgment.

That of a radiologist.

A standard between that of a radiologist and a general internist.

That of an x-ray technician whose expertise in radiology is similar to yours.

Answer: C. A doctor is usually held to the objective standards of fellow doctors, given the circumstances of the case. Specialists will be held to a higher standard: that ordinarily expected of fellow doctors in that specialty. However, if you, a generalist, assume the duties normally performed by a specialist, the law will consider that you are representing yourself as capable of functioning at that level. In the above case, if internists do not regularly read their own x-rays and you, an internist, choose to do so, you will be held to the standard of a radiologist. Choice B is incorrect because “best judgment” is not a legal standard that governs malpractice matters.

The legal duty owed by doctors to their patients is that of reasonable care, defined as that level of care expected of the reasonably competent doctor—that is, a professional standard, not that of a reasonably prudent layperson, the latter being the standard used in negligence actions. Thus, Alabama has held that physicians must “exercise such reasonable care, diligence, and skill as reasonably competent physicians” would exercise in the same or similar circumstances (Keebler v. Winfield Carraway Hospital, 531 So.2d 841 [Ala. 1988]). An Illinois court used similar words: “[A] physician must possess and apply the knowledge, skill, and care of a reasonably well-qualified physician in the relevant medical community” (Purtill v. Hess, 489 N.E.2d 867 [Ill. 1986]). And in Hawaii, “the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony” (Craft v. Peebles, 893 P.2d 138 [Haw. 1995]).

While the professional standard applies to injuries arising out of medical care, the “reasonable person” standard continues to govern non–health care activities such as falls on slippery hospital floors. Unfortunately, the distinction may not always be clear. As one author put it, “Sometimes it is difficult to differentiate bad housekeeping and bad medical care, as where rats in a hospital repeatedly bit a comatose patient” (Dobbs, D.B. 2000. The Law of Torts. St. Paul, Minn.: West Group. Chapter 14, referring to Lejeunee v. Rayne Branch Hospital, 556 So.2d 559 [La. 1990]).

The doctor's specialty does matter in legal proceedings addressing the standard of care. The surgeon will be judged according to the community standard of the ordinarily skilled surgeon, and the internist according to that of other internists. But there is a separate duty to refer if the case is outside the doctor's field of expertise. If the standard is to refer to a specialist, the internist who undertakes to personally treat the patient within that specialty will be held to that higher standard. In Simpson v. Davis, for example, a general dentist performed root canal work and was therefore held to the standard of an endodontist (Simpson v. Davis, 549 P.2d 950 [Kan. 1976]).

The law expects doctors to provide reasonable care to their patients, even for conditions arguably outside their specialty. In a recent lawsuit, a gynecologist failed to consider appendicitis in a 32-year-old woman who presented with fever, chills, nausea, and lower abdominal pain. This delay in diagnosis led to rupture. The defendant-gynecologist argued that the diagnosis of a urinary tract infection or a pelvic condition was appropriate given the doctor's specialty. The gynecologist did not document the abdominal and pelvic examinations in detail, and did not obtain an ultrasound study. The trial court entered a verdict for the plaintiff; jury members later confided that the verdict would have been different had the doctor simply included appendicitis in the differential diagnosis (“Not My Specialty.” The Doctor's Advocate, Third Quarter, 2006).

In medicine, there is frequently a minority view as to how things ought to be done, so the standard of care need not necessarily be unanimous. So long as the minority view is held by a respectable group of doctors, the law will accept it as a legitimate alternative. However, this does not mean that any “on-the-fringe” publication on an issue will suffice. A minority view is reflective of a different approach to the same problem, but the care rendered must still comply with the standard of care espoused. In a Texas case, the court was not concerned with whether the practice was that of a respectable minority or a considerable number of physicians, but whether it met the standard. The case involved an augmentation mammoplasty procedure that resulted in silicone leakage. A number of qualified physicians had used that procedure, and this satisfied the court that the standard had been met (Henderson v. Heyer-Schulte Corp. of Santa Barbara, 600 S.W.2d 844 [Tex Civ. App. 1980]).

Finally, courts have in the past considered the locale where the tortious act took place, invoking the so-called “locality rule.” This was based on the belief that different standards of care were applicable in different areas of the country, for example, urban vs. rural. However, this rule has been largely abandoned in favor of a uniform standard, because current medical training and board certifications all adhere to a national standard. But geographic considerations are not entirely irrelevant. Where the local medical facilities lack state-of-the-art equipment or specialists, courts will give due consideration to such conditions. Still, there is always the duty to reasonably transfer to an available specialist or facility, and failure to do so may form the basis of liability.

Contact the author at [email protected].