Law & Medicine

Question: An internist prescribed increasing doses of cholestyramine for a patient with hypercholesterolemia with resulting constipation. The constipation worsened after codeine was used to relieve abdominal pain. A month later, the patient experienced severe abdominal distress, and a barium enema revealed a perforated sigmoid colon. She underwent emergency surgery, and the colon was found to be distended, with impacted feces the size of tennis balls. She sued the internist, alleging that his negligence in prescribing the various medications led to the intestinal perforation. Which of the following statements best fits the situation?

A. The internist will lose the case because he should have chosen a statin over a bile acid sequestrant.

B. The internist was negligent when he prescribed codeine in combination with cholestyramine.

C. The patient was fully aware that constipation is a side effect of these medications, and so assumed the risk of injury.

D. The patient has not proved that the bowel perforation was caused by the internist's negligence.

E. The barium enema could have caused the perforation, and the proper party to sue is the radiologist.

Answer: D. Choices A and B may reflect the general medical view, but the use of these approved drugs is determined by the individual clinical situation and may not constitute substandard care. Choice C is incorrect, as the patient can hardly be said to have accepted the risk of a bowel perforation. This hypothetical case is adapted from Roskin v. Rosow (#301356, San Mateo Cty Super. Ct. [Cal. 1987]), which illustrates the importance of the causation factor in tort litigation. The defendant contended that the plaintiff reported only mild constipation, and that the bowel was perforated during the barium enema, not from the use of medications. There being no settlement, the case went to trial, and the jury found for the defendant because the plaintiff did not satisfy the causation element. The radiologist was apparently not sued, perhaps because the statute of limitations had lapsed.

In order to prevail in a medical negligence lawsuit, a plaintiff must prove causation even after establishing that the doctor owes a duty of care and that there has been a breach of the standard of care. There are two types of causation, factual cause and proximate cause, and both must be proved. Factual cause is established by the use of the “but-for” test, that is: “The defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred but for defendant's conduct,” or “the defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred without defendant's conduct” (Steven Finz, 1998, “Sum & Substance Audio on Torts”).

Proximate cause is not as easily ascertained. One Court of Appeals has stated: “A plaintiff proves proximate cause, also referred to as legal cause, by demonstrating a natural and continuous sequence of events stemming from the defendant's act or omission, unbroken by any efficient intervening cause, that produces an injury, in whole or in part, and without which the injury would not have occurred” (Barrett v. Harris, 86 P.3d 954 [Ariz. 2004]).

The key inquiry in proximate cause analysis is whether the injury was foreseeable. If the defendant could not reasonably have foreseen the resulting harm, the defendant escapes liability. Suppose Mr. A negligently broke the leg of a pedestrian as the result of careless driving. Unfortunately, the injury was worsened by a surgeon's intervening negligence. Because surgical malpractice is foreseeable, the surgeon's negligence is said to be a concurring cause, and Mr. A, the original tortfeasor, becomes liable to the pedestrian for both the original and the aggravated injury (the surgeon is of course also liable).

In a recent Florida case, the District Court of Appeals found several doctors liable for missing the diagnosis of tuberculous meningitis. The court held that since there were multiple doctors involved, i.e., concurring causes, the plaintiff was entitled to concurring-cause jury instruction. The purpose of such instruction was to negate the idea that a defendant is excused from the consequences of negligence by reason of some other cause concurring in time and contributing to the same injury (Hadley v. Terwilleger, 873 So.2d 378 [Fl. 2004]).

On the other hand, an event may occur in the interval between the defendant's negligent act and the plaintiff's injury that breaks the chain of causation. The law, for example, does not hold a defendant liable when an unforeseeable intervening factor has led to an unforeseeable injury. Superseding cause is “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about” (Restatement [Second] of Torts §440).

Suppose an emergency department doctor, Dr. B, missed a fracture on an x-ray. Upon discovering Dr. B's error the following day, the radiologist informed the on-call physician, Dr. C. Unfortunately, Dr. C failed to notify the patient. Did Dr. C's negligence free Dr. B from liability? In a case with similar facts, the 6th Circuit Court held this was a superseding cause relieving the first doctor of liability (Siggers v. Barlow, 906 F.2d 241 [6th Cir. Ky, 1990]).

To analyze causation issues, one has to identify factual cause issues separately from proximate cause issues. To make matters worse, the term “legal cause” is sometimes used interchangeably with “proximate cause.” And of course, there can be more than one proximate cause for any given injury. Reflecting this complexity, the California Supreme Court now disallows confusing jury instructions regarding proximate cause, requiring instead that the jury be simply directed to determine whether the defendant's conduct was a contributory factor in the plaintiff's injury (Mitchell v. Gonzales, 819 P.2d 872 [Cal. 1991]).

Contact the author at [email protected].

Question: An internist prescribed increasing doses of cholestyramine for a patient with hypercholesterolemia with resulting constipation. The constipation worsened after codeine was used to relieve abdominal pain. A month later, the patient experienced severe abdominal distress, and a barium enema revealed a perforated sigmoid colon. She underwent emergency surgery, and the colon was found to be distended, with impacted feces the size of tennis balls. She sued the internist, alleging that his negligence in prescribing the various medications led to the intestinal perforation. Which of the following statements best fits the situation?

A. The internist will lose the case because he should have chosen a statin over a bile acid sequestrant.

B. The internist was negligent when he prescribed codeine in combination with cholestyramine.

C. The patient was fully aware that constipation is a side effect of these medications, and so assumed the risk of injury.

D. The patient has not proved that the bowel perforation was caused by the internist's negligence.

E. The barium enema could have caused the perforation, and the proper party to sue is the radiologist.

Answer: D. Choices A and B may reflect the general medical view, but the use of these approved drugs is determined by the individual clinical situation and may not constitute substandard care. Choice C is incorrect, as the patient can hardly be said to have accepted the risk of a bowel perforation. This hypothetical case is adapted from Roskin v. Rosow (#301356, San Mateo Cty Super. Ct. [Cal. 1987]), which illustrates the importance of the causation factor in tort litigation. The defendant contended that the plaintiff reported only mild constipation, and that the bowel was perforated during the barium enema, not from the use of medications. There being no settlement, the case went to trial, and the jury found for the defendant because the plaintiff did not satisfy the causation element. The radiologist was apparently not sued, perhaps because the statute of limitations had lapsed.

In order to prevail in a medical negligence lawsuit, a plaintiff must prove causation even after establishing that the doctor owes a duty of care and that there has been a breach of the standard of care. There are two types of causation, factual cause and proximate cause, and both must be proved. Factual cause is established by the use of the “but-for” test, that is: “The defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred but for defendant's conduct,” or “the defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred without defendant's conduct” (Steven Finz, 1998, “Sum & Substance Audio on Torts”).

Proximate cause is not as easily ascertained. One Court of Appeals has stated: “A plaintiff proves proximate cause, also referred to as legal cause, by demonstrating a natural and continuous sequence of events stemming from the defendant's act or omission, unbroken by any efficient intervening cause, that produces an injury, in whole or in part, and without which the injury would not have occurred” (Barrett v. Harris, 86 P.3d 954 [Ariz. 2004]).

The key inquiry in proximate cause analysis is whether the injury was foreseeable. If the defendant could not reasonably have foreseen the resulting harm, the defendant escapes liability. Suppose Mr. A negligently broke the leg of a pedestrian as the result of careless driving. Unfortunately, the injury was worsened by a surgeon's intervening negligence. Because surgical malpractice is foreseeable, the surgeon's negligence is said to be a concurring cause, and Mr. A, the original tortfeasor, becomes liable to the pedestrian for both the original and the aggravated injury (the surgeon is of course also liable).

In a recent Florida case, the District Court of Appeals found several doctors liable for missing the diagnosis of tuberculous meningitis. The court held that since there were multiple doctors involved, i.e., concurring causes, the plaintiff was entitled to concurring-cause jury instruction. The purpose of such instruction was to negate the idea that a defendant is excused from the consequences of negligence by reason of some other cause concurring in time and contributing to the same injury (Hadley v. Terwilleger, 873 So.2d 378 [Fl. 2004]).

On the other hand, an event may occur in the interval between the defendant's negligent act and the plaintiff's injury that breaks the chain of causation. The law, for example, does not hold a defendant liable when an unforeseeable intervening factor has led to an unforeseeable injury. Superseding cause is “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about” (Restatement [Second] of Torts §440).

Suppose an emergency department doctor, Dr. B, missed a fracture on an x-ray. Upon discovering Dr. B's error the following day, the radiologist informed the on-call physician, Dr. C. Unfortunately, Dr. C failed to notify the patient. Did Dr. C's negligence free Dr. B from liability? In a case with similar facts, the 6th Circuit Court held this was a superseding cause relieving the first doctor of liability (Siggers v. Barlow, 906 F.2d 241 [6th Cir. Ky, 1990]).

To analyze causation issues, one has to identify factual cause issues separately from proximate cause issues. To make matters worse, the term “legal cause” is sometimes used interchangeably with “proximate cause.” And of course, there can be more than one proximate cause for any given injury. Reflecting this complexity, the California Supreme Court now disallows confusing jury instructions regarding proximate cause, requiring instead that the jury be simply directed to determine whether the defendant's conduct was a contributory factor in the plaintiff's injury (Mitchell v. Gonzales, 819 P.2d 872 [Cal. 1991]).

Contact the author at [email protected].

Question: An internist prescribed increasing doses of cholestyramine for a patient with hypercholesterolemia with resulting constipation. The constipation worsened after codeine was used to relieve abdominal pain. A month later, the patient experienced severe abdominal distress, and a barium enema revealed a perforated sigmoid colon. She underwent emergency surgery, and the colon was found to be distended, with impacted feces the size of tennis balls. She sued the internist, alleging that his negligence in prescribing the various medications led to the intestinal perforation. Which of the following statements best fits the situation?

A. The internist will lose the case because he should have chosen a statin over a bile acid sequestrant.

B. The internist was negligent when he prescribed codeine in combination with cholestyramine.

C. The patient was fully aware that constipation is a side effect of these medications, and so assumed the risk of injury.

D. The patient has not proved that the bowel perforation was caused by the internist's negligence.

E. The barium enema could have caused the perforation, and the proper party to sue is the radiologist.

Answer: D. Choices A and B may reflect the general medical view, but the use of these approved drugs is determined by the individual clinical situation and may not constitute substandard care. Choice C is incorrect, as the patient can hardly be said to have accepted the risk of a bowel perforation. This hypothetical case is adapted from Roskin v. Rosow (#301356, San Mateo Cty Super. Ct. [Cal. 1987]), which illustrates the importance of the causation factor in tort litigation. The defendant contended that the plaintiff reported only mild constipation, and that the bowel was perforated during the barium enema, not from the use of medications. There being no settlement, the case went to trial, and the jury found for the defendant because the plaintiff did not satisfy the causation element. The radiologist was apparently not sued, perhaps because the statute of limitations had lapsed.

In order to prevail in a medical negligence lawsuit, a plaintiff must prove causation even after establishing that the doctor owes a duty of care and that there has been a breach of the standard of care. There are two types of causation, factual cause and proximate cause, and both must be proved. Factual cause is established by the use of the “but-for” test, that is: “The defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred but for defendant's conduct,” or “the defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred without defendant's conduct” (Steven Finz, 1998, “Sum & Substance Audio on Torts”).

Proximate cause is not as easily ascertained. One Court of Appeals has stated: “A plaintiff proves proximate cause, also referred to as legal cause, by demonstrating a natural and continuous sequence of events stemming from the defendant's act or omission, unbroken by any efficient intervening cause, that produces an injury, in whole or in part, and without which the injury would not have occurred” (Barrett v. Harris, 86 P.3d 954 [Ariz. 2004]).

The key inquiry in proximate cause analysis is whether the injury was foreseeable. If the defendant could not reasonably have foreseen the resulting harm, the defendant escapes liability. Suppose Mr. A negligently broke the leg of a pedestrian as the result of careless driving. Unfortunately, the injury was worsened by a surgeon's intervening negligence. Because surgical malpractice is foreseeable, the surgeon's negligence is said to be a concurring cause, and Mr. A, the original tortfeasor, becomes liable to the pedestrian for both the original and the aggravated injury (the surgeon is of course also liable).

In a recent Florida case, the District Court of Appeals found several doctors liable for missing the diagnosis of tuberculous meningitis. The court held that since there were multiple doctors involved, i.e., concurring causes, the plaintiff was entitled to concurring-cause jury instruction. The purpose of such instruction was to negate the idea that a defendant is excused from the consequences of negligence by reason of some other cause concurring in time and contributing to the same injury (Hadley v. Terwilleger, 873 So.2d 378 [Fl. 2004]).

On the other hand, an event may occur in the interval between the defendant's negligent act and the plaintiff's injury that breaks the chain of causation. The law, for example, does not hold a defendant liable when an unforeseeable intervening factor has led to an unforeseeable injury. Superseding cause is “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about” (Restatement [Second] of Torts §440).

Suppose an emergency department doctor, Dr. B, missed a fracture on an x-ray. Upon discovering Dr. B's error the following day, the radiologist informed the on-call physician, Dr. C. Unfortunately, Dr. C failed to notify the patient. Did Dr. C's negligence free Dr. B from liability? In a case with similar facts, the 6th Circuit Court held this was a superseding cause relieving the first doctor of liability (Siggers v. Barlow, 906 F.2d 241 [6th Cir. Ky, 1990]).

To analyze causation issues, one has to identify factual cause issues separately from proximate cause issues. To make matters worse, the term “legal cause” is sometimes used interchangeably with “proximate cause.” And of course, there can be more than one proximate cause for any given injury. Reflecting this complexity, the California Supreme Court now disallows confusing jury instructions regarding proximate cause, requiring instead that the jury be simply directed to determine whether the defendant's conduct was a contributory factor in the plaintiff's injury (Mitchell v. Gonzales, 819 P.2d 872 [Cal. 1991]).

Contact the author at [email protected].

Complaint of arm pain ends in death

TWO WEEKS OF SEVERE PAIN IN HER LEFT ARM, along with severe chest pain and a sensation of “elephants” on her chest, prompted a 49-year-old woman to visit her primary care physician. The patient had gone to the emergency room 3 months earlier with chest pain. A stress test done at that time was negative, and an electrocardiogram was normal. The woman had a history of hypercholesterolemia and a family history of heart disease. She had recently quit smoking after 25 years.

The physician’s nurse practitioner noted bilateral arm pain and diagnosed arthralgia. The doctor and nurse claimed that the doctor performed an impromptu physical examination as the patient was leaving the office (the patient claimed, in disallowed testimony, that she had seen the doctor only in the parking lot, and he didn’t examine her). The doctor said that the patient denied chest pain when he examined her and reported bilateral rather than left arm pain. He also said he found a neck spasm and prescribed Darvocet for the arm pain. The doctor didn’t record the findings of the exam.

The patient died in her bathroom 2 days later. The cause was an arrhythmia resulting from decreased blood flow to the heart from atherosclerotic disease.

PLAINTIFF’S CLAIM Cardiac ischemia should have been ruled out at the office visit.

DOCTOR’S DEFENSE An adequate examination was performed to rule out cardiac disease, and reliance on the previous stress test results was proper.

VERDICT $1.215 million Florida verdict.

COMMENT Appropriate documentation might have averted a $1.2 million plaintiff verdict!

Delayed diagnosis leads to quadriplegia

A 60-YEAR-OLD WOMAN WAS TREATED FOR NECK PAIN at a hospital and released. The next day, she went to a medical center because of pain running down her arm. Nine hours later, she lost sensation in her legs.

Magnetic resonance imaging performed the following day revealed an epidural abscess. The woman underwent surgery at another hospital that night.

PLAINTIFF’S CLAIM The delay in diagnosis and surgery caused the plaintiff to become quadriplegic.

THE DEFENSE No information about the nature of the defense is available.

VERDICT $1.9 million New Jersey settlement.

COMMENT While most radiculopathy (whether cervical or lumbar) can be treated conservatively, cauda equina or symptoms of myelopathy indicate a neurosurgical emergency. A delay in definitive diagnosis and treatment will undoubtedly play out in court.

“Classic” endocarditis is missed again, and again

AFTER 5 OR 6 WEEKS OF SYMPTOMS, including fever, chills, myalgia, weight loss, fatigue, light-headedness, weakness, non-productive cough, and intermittent fever that peaked at 102.3°F, a 24-year-old woman sought treatment at her family physician’s office. She had a documented grade III heart murmur, interpreted by her physician as a long-standing benign systolic murmur.

Although she didn’t report dysuria, urgency, frequency, flank pain, or other urinary symptoms, the physician assistant who saw the patient at this visit diagnosed a urinary tract infection. The PA prescribed antibiotics and instructed the patient to follow up in several weeks.

The woman returned twice during the month after her initial visit; she was seen by a physician on both occasions. She reported a syncopal episode and was diagnosed with ongoing anemia attributable to normal iron deficiency. No diagnostic tests were ordered.

During follow-up visits over the next 2 months, the patient complained of increasing fatigue, shortness of breath, tremors, and loss of appetite. She was given a diagnosis of depression and a prescription for Zoloft. When she continued to deteriorate, she was given an additional diagnosis of possible bronchitis or pneumonia.

Early one evening 3 months after her initial visit, on a day when she had been seen at the practice, the patient collapsed at home. She was taken by ambulance to a hospital, where she died of cardiopulmonary arrest. An autopsy revealed bacterial endocarditis of the mitral valve.

PLAINTIFF’S CLAIM The patient had a classic presentation of endocarditis; a proper workup would have led to diagnosis and treatment.

THE DEFENSE No information about the nature of the defense is available.

VERDICT $1.2 million Virginia settlement.

COMMENT Although horses are common, when a patient fails to improve, we need to think of zebras, too. In this case, the combination of fever, constitutional symptoms, and a heart murmur should have at least raised the suspicion of bacterial endocarditis.

Malignant mole never made it to pathology

A WOMAN NOTICED A NEW MOLE ON HER LEFT FOOT, which didn’t concern her until 4 years later, when it began to grow, itch, and turn red. She went to her family physician, who decided to remove the mole. After doing so, the doctor told the patient that he’d send it for pathologic inspection and handed it to the assisting nurse, expecting her to prepare it properly for the laboratory.

When the time came to remove the stitches, the patient asked her family physician if a doctor in the medical practice where she worked could take them out. The family physician agreed. The patient didn’t return to her family physician afterward; she transferred to a primary care physician in the office where she worked.

The mole then returned to the patient’s foot, and she requested transfer of her records to the new physician. When the records arrived, they didn’t include a pathology report; it appeared that the mole hadn’t been sent to the pathology lab.

The patient’s physician sent her to a podiatrist, who removed the recurrent mole a little over a year after she first consulted her family physician. The pathology report indicated it was a malignant melanoma.

PLAINTIFF’S CLAIM It was negligent to fail to send the mole to a pathology lab and to fail to notice that a pathology report had not come back. The delay in diagnosis and treatment of the cancer increased the risk of recurrence and other complications.

THE DEFENSE The family physician blamed the procedures of the group, and the group blamed the family doctor.

VERDICT $3.25 million Kentucky verdict.

COMMENT I recently participated as an expert witness (for the defense) in a similar malpractice case in which the defendant did send the mole to pathology. In today’s litigious society, how can we not send every “mole” for pathologic examination?

Complaint of arm pain ends in death

TWO WEEKS OF SEVERE PAIN IN HER LEFT ARM, along with severe chest pain and a sensation of “elephants” on her chest, prompted a 49-year-old woman to visit her primary care physician. The patient had gone to the emergency room 3 months earlier with chest pain. A stress test done at that time was negative, and an electrocardiogram was normal. The woman had a history of hypercholesterolemia and a family history of heart disease. She had recently quit smoking after 25 years.

The physician’s nurse practitioner noted bilateral arm pain and diagnosed arthralgia. The doctor and nurse claimed that the doctor performed an impromptu physical examination as the patient was leaving the office (the patient claimed, in disallowed testimony, that she had seen the doctor only in the parking lot, and he didn’t examine her). The doctor said that the patient denied chest pain when he examined her and reported bilateral rather than left arm pain. He also said he found a neck spasm and prescribed Darvocet for the arm pain. The doctor didn’t record the findings of the exam.

The patient died in her bathroom 2 days later. The cause was an arrhythmia resulting from decreased blood flow to the heart from atherosclerotic disease.

PLAINTIFF’S CLAIM Cardiac ischemia should have been ruled out at the office visit.

DOCTOR’S DEFENSE An adequate examination was performed to rule out cardiac disease, and reliance on the previous stress test results was proper.

VERDICT $1.215 million Florida verdict.

COMMENT Appropriate documentation might have averted a $1.2 million plaintiff verdict!

Delayed diagnosis leads to quadriplegia

A 60-YEAR-OLD WOMAN WAS TREATED FOR NECK PAIN at a hospital and released. The next day, she went to a medical center because of pain running down her arm. Nine hours later, she lost sensation in her legs.

Magnetic resonance imaging performed the following day revealed an epidural abscess. The woman underwent surgery at another hospital that night.

PLAINTIFF’S CLAIM The delay in diagnosis and surgery caused the plaintiff to become quadriplegic.

THE DEFENSE No information about the nature of the defense is available.

VERDICT $1.9 million New Jersey settlement.

COMMENT While most radiculopathy (whether cervical or lumbar) can be treated conservatively, cauda equina or symptoms of myelopathy indicate a neurosurgical emergency. A delay in definitive diagnosis and treatment will undoubtedly play out in court.

“Classic” endocarditis is missed again, and again

AFTER 5 OR 6 WEEKS OF SYMPTOMS, including fever, chills, myalgia, weight loss, fatigue, light-headedness, weakness, non-productive cough, and intermittent fever that peaked at 102.3°F, a 24-year-old woman sought treatment at her family physician’s office. She had a documented grade III heart murmur, interpreted by her physician as a long-standing benign systolic murmur.

Although she didn’t report dysuria, urgency, frequency, flank pain, or other urinary symptoms, the physician assistant who saw the patient at this visit diagnosed a urinary tract infection. The PA prescribed antibiotics and instructed the patient to follow up in several weeks.

The woman returned twice during the month after her initial visit; she was seen by a physician on both occasions. She reported a syncopal episode and was diagnosed with ongoing anemia attributable to normal iron deficiency. No diagnostic tests were ordered.

During follow-up visits over the next 2 months, the patient complained of increasing fatigue, shortness of breath, tremors, and loss of appetite. She was given a diagnosis of depression and a prescription for Zoloft. When she continued to deteriorate, she was given an additional diagnosis of possible bronchitis or pneumonia.

Early one evening 3 months after her initial visit, on a day when she had been seen at the practice, the patient collapsed at home. She was taken by ambulance to a hospital, where she died of cardiopulmonary arrest. An autopsy revealed bacterial endocarditis of the mitral valve.

PLAINTIFF’S CLAIM The patient had a classic presentation of endocarditis; a proper workup would have led to diagnosis and treatment.

THE DEFENSE No information about the nature of the defense is available.

VERDICT $1.2 million Virginia settlement.

COMMENT Although horses are common, when a patient fails to improve, we need to think of zebras, too. In this case, the combination of fever, constitutional symptoms, and a heart murmur should have at least raised the suspicion of bacterial endocarditis.

Malignant mole never made it to pathology

A WOMAN NOTICED A NEW MOLE ON HER LEFT FOOT, which didn’t concern her until 4 years later, when it began to grow, itch, and turn red. She went to her family physician, who decided to remove the mole. After doing so, the doctor told the patient that he’d send it for pathologic inspection and handed it to the assisting nurse, expecting her to prepare it properly for the laboratory.

When the time came to remove the stitches, the patient asked her family physician if a doctor in the medical practice where she worked could take them out. The family physician agreed. The patient didn’t return to her family physician afterward; she transferred to a primary care physician in the office where she worked.

The mole then returned to the patient’s foot, and she requested transfer of her records to the new physician. When the records arrived, they didn’t include a pathology report; it appeared that the mole hadn’t been sent to the pathology lab.

The patient’s physician sent her to a podiatrist, who removed the recurrent mole a little over a year after she first consulted her family physician. The pathology report indicated it was a malignant melanoma.

PLAINTIFF’S CLAIM It was negligent to fail to send the mole to a pathology lab and to fail to notice that a pathology report had not come back. The delay in diagnosis and treatment of the cancer increased the risk of recurrence and other complications.

THE DEFENSE The family physician blamed the procedures of the group, and the group blamed the family doctor.

VERDICT $3.25 million Kentucky verdict.

COMMENT I recently participated as an expert witness (for the defense) in a similar malpractice case in which the defendant did send the mole to pathology. In today’s litigious society, how can we not send every “mole” for pathologic examination?

Complaint of arm pain ends in death

TWO WEEKS OF SEVERE PAIN IN HER LEFT ARM, along with severe chest pain and a sensation of “elephants” on her chest, prompted a 49-year-old woman to visit her primary care physician. The patient had gone to the emergency room 3 months earlier with chest pain. A stress test done at that time was negative, and an electrocardiogram was normal. The woman had a history of hypercholesterolemia and a family history of heart disease. She had recently quit smoking after 25 years.

The physician’s nurse practitioner noted bilateral arm pain and diagnosed arthralgia. The doctor and nurse claimed that the doctor performed an impromptu physical examination as the patient was leaving the office (the patient claimed, in disallowed testimony, that she had seen the doctor only in the parking lot, and he didn’t examine her). The doctor said that the patient denied chest pain when he examined her and reported bilateral rather than left arm pain. He also said he found a neck spasm and prescribed Darvocet for the arm pain. The doctor didn’t record the findings of the exam.

The patient died in her bathroom 2 days later. The cause was an arrhythmia resulting from decreased blood flow to the heart from atherosclerotic disease.

PLAINTIFF’S CLAIM Cardiac ischemia should have been ruled out at the office visit.

DOCTOR’S DEFENSE An adequate examination was performed to rule out cardiac disease, and reliance on the previous stress test results was proper.

VERDICT $1.215 million Florida verdict.

COMMENT Appropriate documentation might have averted a $1.2 million plaintiff verdict!

Delayed diagnosis leads to quadriplegia

A 60-YEAR-OLD WOMAN WAS TREATED FOR NECK PAIN at a hospital and released. The next day, she went to a medical center because of pain running down her arm. Nine hours later, she lost sensation in her legs.

Magnetic resonance imaging performed the following day revealed an epidural abscess. The woman underwent surgery at another hospital that night.

PLAINTIFF’S CLAIM The delay in diagnosis and surgery caused the plaintiff to become quadriplegic.

THE DEFENSE No information about the nature of the defense is available.

VERDICT $1.9 million New Jersey settlement.

COMMENT While most radiculopathy (whether cervical or lumbar) can be treated conservatively, cauda equina or symptoms of myelopathy indicate a neurosurgical emergency. A delay in definitive diagnosis and treatment will undoubtedly play out in court.

“Classic” endocarditis is missed again, and again

AFTER 5 OR 6 WEEKS OF SYMPTOMS, including fever, chills, myalgia, weight loss, fatigue, light-headedness, weakness, non-productive cough, and intermittent fever that peaked at 102.3°F, a 24-year-old woman sought treatment at her family physician’s office. She had a documented grade III heart murmur, interpreted by her physician as a long-standing benign systolic murmur.

Although she didn’t report dysuria, urgency, frequency, flank pain, or other urinary symptoms, the physician assistant who saw the patient at this visit diagnosed a urinary tract infection. The PA prescribed antibiotics and instructed the patient to follow up in several weeks.

The woman returned twice during the month after her initial visit; she was seen by a physician on both occasions. She reported a syncopal episode and was diagnosed with ongoing anemia attributable to normal iron deficiency. No diagnostic tests were ordered.

During follow-up visits over the next 2 months, the patient complained of increasing fatigue, shortness of breath, tremors, and loss of appetite. She was given a diagnosis of depression and a prescription for Zoloft. When she continued to deteriorate, she was given an additional diagnosis of possible bronchitis or pneumonia.

Early one evening 3 months after her initial visit, on a day when she had been seen at the practice, the patient collapsed at home. She was taken by ambulance to a hospital, where she died of cardiopulmonary arrest. An autopsy revealed bacterial endocarditis of the mitral valve.

PLAINTIFF’S CLAIM The patient had a classic presentation of endocarditis; a proper workup would have led to diagnosis and treatment.

THE DEFENSE No information about the nature of the defense is available.

VERDICT $1.2 million Virginia settlement.

COMMENT Although horses are common, when a patient fails to improve, we need to think of zebras, too. In this case, the combination of fever, constitutional symptoms, and a heart murmur should have at least raised the suspicion of bacterial endocarditis.

Malignant mole never made it to pathology

A WOMAN NOTICED A NEW MOLE ON HER LEFT FOOT, which didn’t concern her until 4 years later, when it began to grow, itch, and turn red. She went to her family physician, who decided to remove the mole. After doing so, the doctor told the patient that he’d send it for pathologic inspection and handed it to the assisting nurse, expecting her to prepare it properly for the laboratory.

When the time came to remove the stitches, the patient asked her family physician if a doctor in the medical practice where she worked could take them out. The family physician agreed. The patient didn’t return to her family physician afterward; she transferred to a primary care physician in the office where she worked.

The mole then returned to the patient’s foot, and she requested transfer of her records to the new physician. When the records arrived, they didn’t include a pathology report; it appeared that the mole hadn’t been sent to the pathology lab.

The patient’s physician sent her to a podiatrist, who removed the recurrent mole a little over a year after she first consulted her family physician. The pathology report indicated it was a malignant melanoma.

PLAINTIFF’S CLAIM It was negligent to fail to send the mole to a pathology lab and to fail to notice that a pathology report had not come back. The delay in diagnosis and treatment of the cancer increased the risk of recurrence and other complications.

THE DEFENSE The family physician blamed the procedures of the group, and the group blamed the family doctor.

VERDICT $3.25 million Kentucky verdict.

COMMENT I recently participated as an expert witness (for the defense) in a similar malpractice case in which the defendant did send the mole to pathology. In today’s litigious society, how can we not send every “mole” for pathologic examination?

Question: Twenty minutes into an otherwise routine endoscopic examination, the patient sustained a stroke, which left him with cognitive loss and hemiparesis. The etiology was later established to be air embolism. A lawsuit asserts obvious negligence on the part of the gastroenterologist, as the patient was entirely well prior to the procedure. No plaintiff expert was called. Which of the following is correct?

A. This is a case of res ipsa loquitur, which means the tortfeasor takes the patient as he finds him.

B. The plaintiff is alleging res ipsa, as both the identity of the actor and the nature of the injury are known.

C. Since the gastroenterologist had full and exclusive control over the procedure, the jury can impute the fault to him.

D. The average juror in this case should be able to infer that the stroke resulted from a negligent act.

E. If the court accepts the res ipsa theory, the plaintiff does not need an expert witness to testify to the standard of care.

Answer: E. The doctrine of common knowledge, technically called res ipsa loquitur or “the thing speaks for itself,” describes a situation in which the circumstantial evidence is such that a lay juror can form a reasonable belief, so the plaintiff may be entitled to waive the requirement of expert testimony. It raises a presumption of negligence, which is still rebuttable by the defendant. For the doctrine to apply, three conditions must be met: The injury would not have occurred in the absence of someone's negligence, the plaintiff was not at fault, and the defendant had total control of the instrumentality that led to the injury. The facts are insufficient to constitute a clear case of res ipsa, making B and C and D incorrect. Choice A describes the “eggshell skull rule” and is irrelevant here. Thus E is the best answer. (Scenario adapted from Hayes v. Peters, 645 S.E. 2d 846, N.C. 2007.)

Res ipsa had its genesis in the classic 1863 English case where a barrel of flour fell from a window, striking an innocent bystander below (Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299, 1863). In ruling for the plaintiff, the court wrote: “I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had control of it; and in my opinion the fact of its falling is prima facie evidence of negligence.” (A prima facie case means the plaintiff has met the burden of going forward with evidence on the legal issue.)

The res ipsa doctrine is most useful when the plaintiff has insufficient evidence of what caused the negligent act, but circumstances strongly suggest that the defendant was negligent. Res ipsa offers a major advantage to the plaintiff, who may have difficulties securing an expert willing to testify against the doctor-defendant. Still, courts generally hesitate to accept the res ipsa argument, and some states disallow it altogether. For example, an Illinois court rejected the claim that it was common knowledge that someone should be referred to a cardiologist for a heart condition (Evanston Hospital v. Crane, 627 N.E.2d 29, Ill. 1993). In another case, the parents blamed negligent circumcision for painful penile deformity in their child, but lost because the court deemed the evidence insufficient without expert testimony (Walker v. Skiwski, 529 So.2d 184, Miss. 1988).

However, similar cases have gone the other way—for example, where a surgeon operated on the wrong vertebrae (Schwartz v. Abay, 995 P.2d 878, Kan. 1999), or where injuries to the peroneal and tibial nerves occurred after knee surgery (Hale v. Venuto, 137 Cal.App.3d 910, Cal. 1982). And in a well-known California case, the court permitted the use of the res ipsa doctrine against multiple defendants in the operating room after the plaintiff sustained a shoulder injury during an appendectomy (Ybarra v. Spangard, 154 P.2d 687, Cal. 1944). Since the plaintiff was unconscious at the time of injury, the court felt it was appropriate to place the burden on the defendants to explain how the shoulder injury occurred.

Courtroom eloquence concerning res ipsa was at its best in Cassidy, an old English case in which a patient sustained significant injuries following hand surgery for Dupuytren's contracture. His attorney reportedly asserted: “At the outset, only two of the plaintiff's fingers were affected; all four are now useless. There must have been negligence res ipsa” (Cassidy v. Ministry of Health, 2 KB 343, 1951).

Contact the author at [email protected].

Question: Twenty minutes into an otherwise routine endoscopic examination, the patient sustained a stroke, which left him with cognitive loss and hemiparesis. The etiology was later established to be air embolism. A lawsuit asserts obvious negligence on the part of the gastroenterologist, as the patient was entirely well prior to the procedure. No plaintiff expert was called. Which of the following is correct?

A. This is a case of res ipsa loquitur, which means the tortfeasor takes the patient as he finds him.

B. The plaintiff is alleging res ipsa, as both the identity of the actor and the nature of the injury are known.

C. Since the gastroenterologist had full and exclusive control over the procedure, the jury can impute the fault to him.

D. The average juror in this case should be able to infer that the stroke resulted from a negligent act.

E. If the court accepts the res ipsa theory, the plaintiff does not need an expert witness to testify to the standard of care.

Answer: E. The doctrine of common knowledge, technically called res ipsa loquitur or “the thing speaks for itself,” describes a situation in which the circumstantial evidence is such that a lay juror can form a reasonable belief, so the plaintiff may be entitled to waive the requirement of expert testimony. It raises a presumption of negligence, which is still rebuttable by the defendant. For the doctrine to apply, three conditions must be met: The injury would not have occurred in the absence of someone's negligence, the plaintiff was not at fault, and the defendant had total control of the instrumentality that led to the injury. The facts are insufficient to constitute a clear case of res ipsa, making B and C and D incorrect. Choice A describes the “eggshell skull rule” and is irrelevant here. Thus E is the best answer. (Scenario adapted from Hayes v. Peters, 645 S.E. 2d 846, N.C. 2007.)

Res ipsa had its genesis in the classic 1863 English case where a barrel of flour fell from a window, striking an innocent bystander below (Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299, 1863). In ruling for the plaintiff, the court wrote: “I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had control of it; and in my opinion the fact of its falling is prima facie evidence of negligence.” (A prima facie case means the plaintiff has met the burden of going forward with evidence on the legal issue.)

The res ipsa doctrine is most useful when the plaintiff has insufficient evidence of what caused the negligent act, but circumstances strongly suggest that the defendant was negligent. Res ipsa offers a major advantage to the plaintiff, who may have difficulties securing an expert willing to testify against the doctor-defendant. Still, courts generally hesitate to accept the res ipsa argument, and some states disallow it altogether. For example, an Illinois court rejected the claim that it was common knowledge that someone should be referred to a cardiologist for a heart condition (Evanston Hospital v. Crane, 627 N.E.2d 29, Ill. 1993). In another case, the parents blamed negligent circumcision for painful penile deformity in their child, but lost because the court deemed the evidence insufficient without expert testimony (Walker v. Skiwski, 529 So.2d 184, Miss. 1988).

However, similar cases have gone the other way—for example, where a surgeon operated on the wrong vertebrae (Schwartz v. Abay, 995 P.2d 878, Kan. 1999), or where injuries to the peroneal and tibial nerves occurred after knee surgery (Hale v. Venuto, 137 Cal.App.3d 910, Cal. 1982). And in a well-known California case, the court permitted the use of the res ipsa doctrine against multiple defendants in the operating room after the plaintiff sustained a shoulder injury during an appendectomy (Ybarra v. Spangard, 154 P.2d 687, Cal. 1944). Since the plaintiff was unconscious at the time of injury, the court felt it was appropriate to place the burden on the defendants to explain how the shoulder injury occurred.

Courtroom eloquence concerning res ipsa was at its best in Cassidy, an old English case in which a patient sustained significant injuries following hand surgery for Dupuytren's contracture. His attorney reportedly asserted: “At the outset, only two of the plaintiff's fingers were affected; all four are now useless. There must have been negligence res ipsa” (Cassidy v. Ministry of Health, 2 KB 343, 1951).

Contact the author at [email protected].

Question: Twenty minutes into an otherwise routine endoscopic examination, the patient sustained a stroke, which left him with cognitive loss and hemiparesis. The etiology was later established to be air embolism. A lawsuit asserts obvious negligence on the part of the gastroenterologist, as the patient was entirely well prior to the procedure. No plaintiff expert was called. Which of the following is correct?

A. This is a case of res ipsa loquitur, which means the tortfeasor takes the patient as he finds him.

B. The plaintiff is alleging res ipsa, as both the identity of the actor and the nature of the injury are known.

C. Since the gastroenterologist had full and exclusive control over the procedure, the jury can impute the fault to him.

D. The average juror in this case should be able to infer that the stroke resulted from a negligent act.

E. If the court accepts the res ipsa theory, the plaintiff does not need an expert witness to testify to the standard of care.

Answer: E. The doctrine of common knowledge, technically called res ipsa loquitur or “the thing speaks for itself,” describes a situation in which the circumstantial evidence is such that a lay juror can form a reasonable belief, so the plaintiff may be entitled to waive the requirement of expert testimony. It raises a presumption of negligence, which is still rebuttable by the defendant. For the doctrine to apply, three conditions must be met: The injury would not have occurred in the absence of someone's negligence, the plaintiff was not at fault, and the defendant had total control of the instrumentality that led to the injury. The facts are insufficient to constitute a clear case of res ipsa, making B and C and D incorrect. Choice A describes the “eggshell skull rule” and is irrelevant here. Thus E is the best answer. (Scenario adapted from Hayes v. Peters, 645 S.E. 2d 846, N.C. 2007.)

Res ipsa had its genesis in the classic 1863 English case where a barrel of flour fell from a window, striking an innocent bystander below (Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299, 1863). In ruling for the plaintiff, the court wrote: “I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had control of it; and in my opinion the fact of its falling is prima facie evidence of negligence.” (A prima facie case means the plaintiff has met the burden of going forward with evidence on the legal issue.)

The res ipsa doctrine is most useful when the plaintiff has insufficient evidence of what caused the negligent act, but circumstances strongly suggest that the defendant was negligent. Res ipsa offers a major advantage to the plaintiff, who may have difficulties securing an expert willing to testify against the doctor-defendant. Still, courts generally hesitate to accept the res ipsa argument, and some states disallow it altogether. For example, an Illinois court rejected the claim that it was common knowledge that someone should be referred to a cardiologist for a heart condition (Evanston Hospital v. Crane, 627 N.E.2d 29, Ill. 1993). In another case, the parents blamed negligent circumcision for painful penile deformity in their child, but lost because the court deemed the evidence insufficient without expert testimony (Walker v. Skiwski, 529 So.2d 184, Miss. 1988).

However, similar cases have gone the other way—for example, where a surgeon operated on the wrong vertebrae (Schwartz v. Abay, 995 P.2d 878, Kan. 1999), or where injuries to the peroneal and tibial nerves occurred after knee surgery (Hale v. Venuto, 137 Cal.App.3d 910, Cal. 1982). And in a well-known California case, the court permitted the use of the res ipsa doctrine against multiple defendants in the operating room after the plaintiff sustained a shoulder injury during an appendectomy (Ybarra v. Spangard, 154 P.2d 687, Cal. 1944). Since the plaintiff was unconscious at the time of injury, the court felt it was appropriate to place the burden on the defendants to explain how the shoulder injury occurred.

Courtroom eloquence concerning res ipsa was at its best in Cassidy, an old English case in which a patient sustained significant injuries following hand surgery for Dupuytren's contracture. His attorney reportedly asserted: “At the outset, only two of the plaintiff's fingers were affected; all four are now useless. There must have been negligence res ipsa” (Cassidy v. Ministry of Health, 2 KB 343, 1951).

Contact the author at [email protected].

Birth control change proves fatal

THE WORST HEADACHE SHE EVER HAD brought a 21-year-old woman to the emergency room. She had suffered severe headaches the previous month after switching from Depo-Provera shots to Nordette 28 birth control pills; the headaches went away, then returned.

A month after the ER visit, she visited a family medicine clinic, complaining of headaches, nausea, diarrhea, possible fever, and slight dizziness. A physician assistant prescribed Bactrim DS, Phenergan for the nausea, and Phrenilin for the headache.

Two days later, the patient was taken by ambulance to an ER because of numbness all over, nausea, vomiting, and dizziness. She was discharged, but brought back 4 hours later somnolent, difficult to arouse, and unable to obey commands. A computed tomography (CT) scan and magnetic resonance imaging performed the next morning showed blood clots in the brain, with complete occlusion of the superior sagittal sinus vein, and cerebral herniation.

A few days later, the patient was removed from life support. An autopsy indicated that the cause of death was a recent thrombus of the superior sagittal sinus with bilateral acute cerebral infarcts associated with secondary thrombi of tributary veins.

PLAINTIFF’S CLAIM The defendants were negligent in failing to pay attention to the change in the patient’s birth control regimen and test for cerebral thrombosis, a recognized adverse reaction when switching from shots to pills for birth control.

THE DEFENSE No information about the nature of the defense is available.

VERDICT $7 million North Carolina verdict.

COMMENT If you want to avoid malpractice, make sure you obtain urgent imaging for the patient with the worst headache of his or her life.

“Bronchitis” turns out to be lung cancer

UPPER RESPIRATORY TRACT SYMPTOMS prompted the patient to visit his primary care physician, who diagnosed asthma. Six months later, the patient returned with difficulty breathing and discolored mucus. The doctor diagnosed acute bronchitis and ordered a chest radiograph, which showed a growth in the lung. A subsequent CT scan confirmed the finding and identified a swollen right paratracheal lymph node. The radiologist’s report noted that “neoplasm cannot be entirely excluded.”

A series of radiographs and CT scans over the next several months continued to show the growth, which appeared unchanged. Radiologists’ reports advised that cancer couldn’t be ruled out and recommended further evaluation.

More than a year after the initial radiograph, the patient began to complain of persistent back pain along with the respiratory problems. A pain specialist ordered magnetic resonance imaging of the thoracic spine, which showed that the growth had enlarged. The report noted that the mass “must be considered highly worrisome for metastatic or other tumor unless proven otherwise.” A subsequent biopsy revealed stage IV lung cancer.

PLAINTIFF’S CLAIM If the defendant had investigated the growth at the time of the first radiograph, the cancer might have been curable.

DOCTOR’S DEFENSE The lung cancer was caused by the patient’s smoking, and the physician had tried unsuccessfully to get the patient to quit. The doctor did what the radiologists recommended after each CT scan and radiograph. The cancer wasn’t diagnosed earlier because a second scan failed to note that the right lymph node was still enlarged.

VERDICT $3 million Pennsylvania verdict.

COMMENT Failure to aggressively follow up—and diagnose—lung masses is a common malpractice pitfall.

Undiagnosed diabetes leads to death

A 27-YEAR-OLD MAN went to his primary care physician complaining of dry mouth unrelieved by increased fluid intake and occasional soreness while swallowing. He’d lost 11 pounds in the last 5 months. Although the patient had a family history of diabetes and symptoms consistent with diabetes, the physician didn’t check his glucose levels.

Almost a month later, the young man returned with blurred vision and severe headaches. He also complained of bilateral calf cramps at night and had lost another 13 pounds. The physician referred him for an eye exam, but didn’t test for diabetes.

A few weeks later, the patient went to the hospital with the “worst headache ever.” He also reported blurred vision and seeing white dots. Immediately after giving the history, he suffered 2 generalized seizures. A brain scan showed edema; initial urine testing revealed a glucose level of 500, proteinuria 2+, blood, and positive ketones.

The patient was intubated and transferred to another hospital, where he was diagnosed with diabetic ketoacidosis and an elevated intracranial pressure of 57. He didn’t respond to treatment and was pronounced dead 3 days later. An autopsy revealed cerebral edema with herniation of the cerebellar tonsils and brain stem compression and hypoxic encephalopathy associated with diabetic ketoacidosis.

PLAINTIFF’S CLAIM The patient had diabetes when he first saw the doctor; the doctor was negligent in failing to perform a diabetes workup.

DOCTOR’S DEFENSE The patient had a virus when he was first seen, and the headaches were caused by eye strain. The patient died not from undiagnosed diabetes, but from an underlying virus, which couldn’t have been detected until an autopsy was performed.

VERDICT $1 million Massachusetts settlement.

COMMENT Be alert for common but potentially serious medical problems, such as diabetes, when faced with a patient with multiple nonspecific symptoms.

Birth control change proves fatal

THE WORST HEADACHE SHE EVER HAD brought a 21-year-old woman to the emergency room. She had suffered severe headaches the previous month after switching from Depo-Provera shots to Nordette 28 birth control pills; the headaches went away, then returned.

A month after the ER visit, she visited a family medicine clinic, complaining of headaches, nausea, diarrhea, possible fever, and slight dizziness. A physician assistant prescribed Bactrim DS, Phenergan for the nausea, and Phrenilin for the headache.

Two days later, the patient was taken by ambulance to an ER because of numbness all over, nausea, vomiting, and dizziness. She was discharged, but brought back 4 hours later somnolent, difficult to arouse, and unable to obey commands. A computed tomography (CT) scan and magnetic resonance imaging performed the next morning showed blood clots in the brain, with complete occlusion of the superior sagittal sinus vein, and cerebral herniation.

A few days later, the patient was removed from life support. An autopsy indicated that the cause of death was a recent thrombus of the superior sagittal sinus with bilateral acute cerebral infarcts associated with secondary thrombi of tributary veins.

PLAINTIFF’S CLAIM The defendants were negligent in failing to pay attention to the change in the patient’s birth control regimen and test for cerebral thrombosis, a recognized adverse reaction when switching from shots to pills for birth control.

THE DEFENSE No information about the nature of the defense is available.

VERDICT $7 million North Carolina verdict.

COMMENT If you want to avoid malpractice, make sure you obtain urgent imaging for the patient with the worst headache of his or her life.

“Bronchitis” turns out to be lung cancer

UPPER RESPIRATORY TRACT SYMPTOMS prompted the patient to visit his primary care physician, who diagnosed asthma. Six months later, the patient returned with difficulty breathing and discolored mucus. The doctor diagnosed acute bronchitis and ordered a chest radiograph, which showed a growth in the lung. A subsequent CT scan confirmed the finding and identified a swollen right paratracheal lymph node. The radiologist’s report noted that “neoplasm cannot be entirely excluded.”

A series of radiographs and CT scans over the next several months continued to show the growth, which appeared unchanged. Radiologists’ reports advised that cancer couldn’t be ruled out and recommended further evaluation.

More than a year after the initial radiograph, the patient began to complain of persistent back pain along with the respiratory problems. A pain specialist ordered magnetic resonance imaging of the thoracic spine, which showed that the growth had enlarged. The report noted that the mass “must be considered highly worrisome for metastatic or other tumor unless proven otherwise.” A subsequent biopsy revealed stage IV lung cancer.

PLAINTIFF’S CLAIM If the defendant had investigated the growth at the time of the first radiograph, the cancer might have been curable.

DOCTOR’S DEFENSE The lung cancer was caused by the patient’s smoking, and the physician had tried unsuccessfully to get the patient to quit. The doctor did what the radiologists recommended after each CT scan and radiograph. The cancer wasn’t diagnosed earlier because a second scan failed to note that the right lymph node was still enlarged.

VERDICT $3 million Pennsylvania verdict.

COMMENT Failure to aggressively follow up—and diagnose—lung masses is a common malpractice pitfall.

Undiagnosed diabetes leads to death

A 27-YEAR-OLD MAN went to his primary care physician complaining of dry mouth unrelieved by increased fluid intake and occasional soreness while swallowing. He’d lost 11 pounds in the last 5 months. Although the patient had a family history of diabetes and symptoms consistent with diabetes, the physician didn’t check his glucose levels.

Almost a month later, the young man returned with blurred vision and severe headaches. He also complained of bilateral calf cramps at night and had lost another 13 pounds. The physician referred him for an eye exam, but didn’t test for diabetes.

A few weeks later, the patient went to the hospital with the “worst headache ever.” He also reported blurred vision and seeing white dots. Immediately after giving the history, he suffered 2 generalized seizures. A brain scan showed edema; initial urine testing revealed a glucose level of 500, proteinuria 2+, blood, and positive ketones.

The patient was intubated and transferred to another hospital, where he was diagnosed with diabetic ketoacidosis and an elevated intracranial pressure of 57. He didn’t respond to treatment and was pronounced dead 3 days later. An autopsy revealed cerebral edema with herniation of the cerebellar tonsils and brain stem compression and hypoxic encephalopathy associated with diabetic ketoacidosis.

PLAINTIFF’S CLAIM The patient had diabetes when he first saw the doctor; the doctor was negligent in failing to perform a diabetes workup.

DOCTOR’S DEFENSE The patient had a virus when he was first seen, and the headaches were caused by eye strain. The patient died not from undiagnosed diabetes, but from an underlying virus, which couldn’t have been detected until an autopsy was performed.

VERDICT $1 million Massachusetts settlement.

COMMENT Be alert for common but potentially serious medical problems, such as diabetes, when faced with a patient with multiple nonspecific symptoms.

Birth control change proves fatal

THE WORST HEADACHE SHE EVER HAD brought a 21-year-old woman to the emergency room. She had suffered severe headaches the previous month after switching from Depo-Provera shots to Nordette 28 birth control pills; the headaches went away, then returned.

A month after the ER visit, she visited a family medicine clinic, complaining of headaches, nausea, diarrhea, possible fever, and slight dizziness. A physician assistant prescribed Bactrim DS, Phenergan for the nausea, and Phrenilin for the headache.

Two days later, the patient was taken by ambulance to an ER because of numbness all over, nausea, vomiting, and dizziness. She was discharged, but brought back 4 hours later somnolent, difficult to arouse, and unable to obey commands. A computed tomography (CT) scan and magnetic resonance imaging performed the next morning showed blood clots in the brain, with complete occlusion of the superior sagittal sinus vein, and cerebral herniation.

A few days later, the patient was removed from life support. An autopsy indicated that the cause of death was a recent thrombus of the superior sagittal sinus with bilateral acute cerebral infarcts associated with secondary thrombi of tributary veins.

PLAINTIFF’S CLAIM The defendants were negligent in failing to pay attention to the change in the patient’s birth control regimen and test for cerebral thrombosis, a recognized adverse reaction when switching from shots to pills for birth control.

THE DEFENSE No information about the nature of the defense is available.

VERDICT $7 million North Carolina verdict.

COMMENT If you want to avoid malpractice, make sure you obtain urgent imaging for the patient with the worst headache of his or her life.

“Bronchitis” turns out to be lung cancer

UPPER RESPIRATORY TRACT SYMPTOMS prompted the patient to visit his primary care physician, who diagnosed asthma. Six months later, the patient returned with difficulty breathing and discolored mucus. The doctor diagnosed acute bronchitis and ordered a chest radiograph, which showed a growth in the lung. A subsequent CT scan confirmed the finding and identified a swollen right paratracheal lymph node. The radiologist’s report noted that “neoplasm cannot be entirely excluded.”

A series of radiographs and CT scans over the next several months continued to show the growth, which appeared unchanged. Radiologists’ reports advised that cancer couldn’t be ruled out and recommended further evaluation.

More than a year after the initial radiograph, the patient began to complain of persistent back pain along with the respiratory problems. A pain specialist ordered magnetic resonance imaging of the thoracic spine, which showed that the growth had enlarged. The report noted that the mass “must be considered highly worrisome for metastatic or other tumor unless proven otherwise.” A subsequent biopsy revealed stage IV lung cancer.

PLAINTIFF’S CLAIM If the defendant had investigated the growth at the time of the first radiograph, the cancer might have been curable.

DOCTOR’S DEFENSE The lung cancer was caused by the patient’s smoking, and the physician had tried unsuccessfully to get the patient to quit. The doctor did what the radiologists recommended after each CT scan and radiograph. The cancer wasn’t diagnosed earlier because a second scan failed to note that the right lymph node was still enlarged.

VERDICT $3 million Pennsylvania verdict.

COMMENT Failure to aggressively follow up—and diagnose—lung masses is a common malpractice pitfall.

Undiagnosed diabetes leads to death

A 27-YEAR-OLD MAN went to his primary care physician complaining of dry mouth unrelieved by increased fluid intake and occasional soreness while swallowing. He’d lost 11 pounds in the last 5 months. Although the patient had a family history of diabetes and symptoms consistent with diabetes, the physician didn’t check his glucose levels.

Almost a month later, the young man returned with blurred vision and severe headaches. He also complained of bilateral calf cramps at night and had lost another 13 pounds. The physician referred him for an eye exam, but didn’t test for diabetes.

A few weeks later, the patient went to the hospital with the “worst headache ever.” He also reported blurred vision and seeing white dots. Immediately after giving the history, he suffered 2 generalized seizures. A brain scan showed edema; initial urine testing revealed a glucose level of 500, proteinuria 2+, blood, and positive ketones.

The patient was intubated and transferred to another hospital, where he was diagnosed with diabetic ketoacidosis and an elevated intracranial pressure of 57. He didn’t respond to treatment and was pronounced dead 3 days later. An autopsy revealed cerebral edema with herniation of the cerebellar tonsils and brain stem compression and hypoxic encephalopathy associated with diabetic ketoacidosis.

PLAINTIFF’S CLAIM The patient had diabetes when he first saw the doctor; the doctor was negligent in failing to perform a diabetes workup.

DOCTOR’S DEFENSE The patient had a virus when he was first seen, and the headaches were caused by eye strain. The patient died not from undiagnosed diabetes, but from an underlying virus, which couldn’t have been detected until an autopsy was performed.

VERDICT $1 million Massachusetts settlement.

COMMENT Be alert for common but potentially serious medical problems, such as diabetes, when faced with a patient with multiple nonspecific symptoms.

Question: A patient consults her physician for a painful wrist, which is treated with indomethacin. The patient has developed skin rashes caused by various medications in the past, but she does not inform the doctor about this. Shortly after starting indomethacin, she develops Stevens-Johnson syndrome. In regard to an assumption of risk defense, which of the following is true?

A. A patient has a legal duty to reveal to the physician all relevant medical history.

B. Assumption of risk is no longer a valid rule of law.

C. Assumption of risk is an affirmative defense in a tort action and constitutes a complete bar to recovery.

D. Assumption of risk is synonymous with contributory negligence.

E. Giving informed consent is tantamount to assumption of risk.

Answer: C. If a plaintiff is fully aware of the risk to which he or she is exposed, and voluntarily accepts that risk, there will be no recovery of damages if harm results. Known as assumption of risk, it constitutes a complete bar to recovery. This defense has two main elements: a patient's full awareness of the risks, and his or her consent to waive all claims for damages.

In contrast, contributory negligence, which usually serves as a partial rather than complete bar to recovery, arises when negligence by the plaintiff played a part in the resulting injury.

Informed consent is when, after being apprised of the risks and alternatives, a patient gives the physician permission to proceed with diagnosis and treatment. However, this principle says nothing about a patient bearing the risk of harm arising out of negligence or incomplete disclosure by the physician.

The Restatement of Torts defines assumption of risk to mean that the plaintiff fully understands the risk and nonetheless chooses voluntarily to take it (§496-C). One court put it this way: “The doctrine of assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice, either by circumstances or coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury” (Myers v. Boleman, 260 S.E. 2d 359, Ga, 1979).

The assumption of risk defense has been asserted most prominently in sports activities such as boxing, where serious injuries are an integral known risk. Other examples include foolhardy actions, such as “where one tries to beat a rapidly approaching train across the track, to engage in drag racing or to walk upon a frozen pond where the ice is thin” (Myers case, supra).

A physician is expected to obtain a complete medical history, but although the patient is expected to be cooperative, he or she does not have to affirmatively volunteer medical information. A doctor cannot readily invoke this doctrine as a defense simply because the patient has not provided a complete medical history. Thus, in the question above (modified from Hayes v. Hoffman, 296 S.E.2d 216, Ga. 1982), the doctor's assumption of risk defense will likely fail. In the scenario described at the beginning of this column, the patient cannot be assumed to have understood fully the risk of not disclosing her drug allergies. She certainly did not anticipate developing something as serious as Stevens-Johnson syndrome. In a similar case where a patient developed anaphylaxis from using a sulfa-containing drug, an appeals court held that the trial judge erred by instructing the jury that a patient who fails to disclose relevant medical history to a physician has assumed risk of harm (Hawkins v. Greenberg, 283 S.E. 2d 301, Ga, 1981).

But in other situations, an assumption of risk defense may be used successfully. For example, a patient voluntarily and actively sought unorthodox herbal treatment for breast cancer after refusing all conventional therapy. She received full disclosure of the nature of the experimental treatment protocol, and the court therefore rejected her subsequent claim for damages. By giving informed consent to nonconventional experimental therapy in this case, the patient was in effect assuming the risk of harm (Schneider v. Revici, 817 F.2d 987, 2nd Cir. 1987).

In English law, the assumption of risk defense is called volenti non fit injuri (Latin for “to a willing person, no injury is done”). However, knowledge of risk does not necessarily imply consent. For example, a plaintiff who accepted a ride from a drunk driver sustained injuries in a subsequent accident. The court ruled that volenti did not apply unless the drunkenness was so extreme and so obvious that accepting the ride was equivalent to walking on the edge of an unfenced cliff.

Contact the author at [email protected].

Question: A patient consults her physician for a painful wrist, which is treated with indomethacin. The patient has developed skin rashes caused by various medications in the past, but she does not inform the doctor about this. Shortly after starting indomethacin, she develops Stevens-Johnson syndrome. In regard to an assumption of risk defense, which of the following is true?

A. A patient has a legal duty to reveal to the physician all relevant medical history.

B. Assumption of risk is no longer a valid rule of law.

C. Assumption of risk is an affirmative defense in a tort action and constitutes a complete bar to recovery.

D. Assumption of risk is synonymous with contributory negligence.

E. Giving informed consent is tantamount to assumption of risk.

Answer: C. If a plaintiff is fully aware of the risk to which he or she is exposed, and voluntarily accepts that risk, there will be no recovery of damages if harm results. Known as assumption of risk, it constitutes a complete bar to recovery. This defense has two main elements: a patient's full awareness of the risks, and his or her consent to waive all claims for damages.

In contrast, contributory negligence, which usually serves as a partial rather than complete bar to recovery, arises when negligence by the plaintiff played a part in the resulting injury.

Informed consent is when, after being apprised of the risks and alternatives, a patient gives the physician permission to proceed with diagnosis and treatment. However, this principle says nothing about a patient bearing the risk of harm arising out of negligence or incomplete disclosure by the physician.

The Restatement of Torts defines assumption of risk to mean that the plaintiff fully understands the risk and nonetheless chooses voluntarily to take it (§496-C). One court put it this way: “The doctrine of assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice, either by circumstances or coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury” (Myers v. Boleman, 260 S.E. 2d 359, Ga, 1979).

The assumption of risk defense has been asserted most prominently in sports activities such as boxing, where serious injuries are an integral known risk. Other examples include foolhardy actions, such as “where one tries to beat a rapidly approaching train across the track, to engage in drag racing or to walk upon a frozen pond where the ice is thin” (Myers case, supra).

A physician is expected to obtain a complete medical history, but although the patient is expected to be cooperative, he or she does not have to affirmatively volunteer medical information. A doctor cannot readily invoke this doctrine as a defense simply because the patient has not provided a complete medical history. Thus, in the question above (modified from Hayes v. Hoffman, 296 S.E.2d 216, Ga. 1982), the doctor's assumption of risk defense will likely fail. In the scenario described at the beginning of this column, the patient cannot be assumed to have understood fully the risk of not disclosing her drug allergies. She certainly did not anticipate developing something as serious as Stevens-Johnson syndrome. In a similar case where a patient developed anaphylaxis from using a sulfa-containing drug, an appeals court held that the trial judge erred by instructing the jury that a patient who fails to disclose relevant medical history to a physician has assumed risk of harm (Hawkins v. Greenberg, 283 S.E. 2d 301, Ga, 1981).

But in other situations, an assumption of risk defense may be used successfully. For example, a patient voluntarily and actively sought unorthodox herbal treatment for breast cancer after refusing all conventional therapy. She received full disclosure of the nature of the experimental treatment protocol, and the court therefore rejected her subsequent claim for damages. By giving informed consent to nonconventional experimental therapy in this case, the patient was in effect assuming the risk of harm (Schneider v. Revici, 817 F.2d 987, 2nd Cir. 1987).

In English law, the assumption of risk defense is called volenti non fit injuri (Latin for “to a willing person, no injury is done”). However, knowledge of risk does not necessarily imply consent. For example, a plaintiff who accepted a ride from a drunk driver sustained injuries in a subsequent accident. The court ruled that volenti did not apply unless the drunkenness was so extreme and so obvious that accepting the ride was equivalent to walking on the edge of an unfenced cliff.

Contact the author at [email protected].

Question: A patient consults her physician for a painful wrist, which is treated with indomethacin. The patient has developed skin rashes caused by various medications in the past, but she does not inform the doctor about this. Shortly after starting indomethacin, she develops Stevens-Johnson syndrome. In regard to an assumption of risk defense, which of the following is true?

A. A patient has a legal duty to reveal to the physician all relevant medical history.

B. Assumption of risk is no longer a valid rule of law.

C. Assumption of risk is an affirmative defense in a tort action and constitutes a complete bar to recovery.

D. Assumption of risk is synonymous with contributory negligence.

E. Giving informed consent is tantamount to assumption of risk.

Answer: C. If a plaintiff is fully aware of the risk to which he or she is exposed, and voluntarily accepts that risk, there will be no recovery of damages if harm results. Known as assumption of risk, it constitutes a complete bar to recovery. This defense has two main elements: a patient's full awareness of the risks, and his or her consent to waive all claims for damages.

In contrast, contributory negligence, which usually serves as a partial rather than complete bar to recovery, arises when negligence by the plaintiff played a part in the resulting injury.

Informed consent is when, after being apprised of the risks and alternatives, a patient gives the physician permission to proceed with diagnosis and treatment. However, this principle says nothing about a patient bearing the risk of harm arising out of negligence or incomplete disclosure by the physician.

The Restatement of Torts defines assumption of risk to mean that the plaintiff fully understands the risk and nonetheless chooses voluntarily to take it (§496-C). One court put it this way: “The doctrine of assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice, either by circumstances or coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury” (Myers v. Boleman, 260 S.E. 2d 359, Ga, 1979).

The assumption of risk defense has been asserted most prominently in sports activities such as boxing, where serious injuries are an integral known risk. Other examples include foolhardy actions, such as “where one tries to beat a rapidly approaching train across the track, to engage in drag racing or to walk upon a frozen pond where the ice is thin” (Myers case, supra).

A physician is expected to obtain a complete medical history, but although the patient is expected to be cooperative, he or she does not have to affirmatively volunteer medical information. A doctor cannot readily invoke this doctrine as a defense simply because the patient has not provided a complete medical history. Thus, in the question above (modified from Hayes v. Hoffman, 296 S.E.2d 216, Ga. 1982), the doctor's assumption of risk defense will likely fail. In the scenario described at the beginning of this column, the patient cannot be assumed to have understood fully the risk of not disclosing her drug allergies. She certainly did not anticipate developing something as serious as Stevens-Johnson syndrome. In a similar case where a patient developed anaphylaxis from using a sulfa-containing drug, an appeals court held that the trial judge erred by instructing the jury that a patient who fails to disclose relevant medical history to a physician has assumed risk of harm (Hawkins v. Greenberg, 283 S.E. 2d 301, Ga, 1981).

But in other situations, an assumption of risk defense may be used successfully. For example, a patient voluntarily and actively sought unorthodox herbal treatment for breast cancer after refusing all conventional therapy. She received full disclosure of the nature of the experimental treatment protocol, and the court therefore rejected her subsequent claim for damages. By giving informed consent to nonconventional experimental therapy in this case, the patient was in effect assuming the risk of harm (Schneider v. Revici, 817 F.2d 987, 2nd Cir. 1987).

In English law, the assumption of risk defense is called volenti non fit injuri (Latin for “to a willing person, no injury is done”). However, knowledge of risk does not necessarily imply consent. For example, a plaintiff who accepted a ride from a drunk driver sustained injuries in a subsequent accident. The court ruled that volenti did not apply unless the drunkenness was so extreme and so obvious that accepting the ride was equivalent to walking on the edge of an unfenced cliff.

Contact the author at [email protected].

Question: A patient developed severe headache and neck stiffness, which the emergency department (ED) doctor (ED-1) incorrectly diagnosed as a viral infection. The patient went home, but her condition did not improve, so her husband called the ED, where the on-call doctor (ED-2) answered some questions but did not encourage reevaluation because the ED was extremely busy at the time. The patient's condition deteriorated rapidly; she subsequently died, and autopsy revealed a massive subarachnoid bleed. Her husband sued both of the ED doctors as well as the hospital for malpractice. Neither ED-1 nor ED-2 is a hospital employee; they work as independent contractors and derive no salary or fringe benefits from the hospital. A prominent sign at the hospital entrance features these words: “Emergency Services: Physician on duty 24 hours.” Which of the following choices is correct?

A. ED-1 is not liable because he met the standard of care.

B. ED-2 is not liable because there was no doctor-patient relationship.

C. The hospital cannot be liable because it is not a person.

D. The hospital may be vicariously liable for the negligence of both ED-1 and ED-2 because they are akin to being employees.

E. The hospital may be vicariously liable for the negligence of both ED-1 and ED-2 because they are perceived as agents.

Answer: E. Whether ED-1 is liable will depend on whether the original medical history and physical findings were sufficient to raise the diagnosis of a subarachnoid bleed, and whether appropriate studies were undertaken. ED-1 will be judged by the standard ordinarily expected of any physician under similar circumstances. Although ED-2 did not directly examine the patient, there was a discussion with the husband, so it is likely ED-2 will be deemed to have established a doctor-patient relationship. Whether ED-2 breached the standard of care by failing to ask the patient to immediately return to the hospital will depend on the questions asked and the answers received. However, a busy ED is insufficient reason to dissuade a patient from being reevaluated if customary standards so dictate.

Any entity, not only a person, can be held liable for civil damages. Hospitals can therefore be asked to pay damages for any number of reasons, such as direct negligence, premise liability, etc. Vicarious liability is indirect legal liability, typically arising from an employer-employee relationship, which is not the situation here. However, vicarious liability can also arise from a principal-agent relationship, and under some circumstances, an independent contractor can be deemed to be an agent. The plaintiff will likely plead this theory by casting the ED physicians as ostensible agents; in other words, the hospital has held itself out to the public as a provider of care, as evidenced by the hospital sign that ED doctors were on duty 24 hours a day.

How can hospitals be held liable for the negligent acts of its doctors and staff? Vicarious liability is a legal doctrine in which a party is held legally responsible for the negligence of another because of its relationship to the wrongdoer. Courts have generally used the employer-employee or the agency principle to hold a hospital vicariously liable for the negligence of its health care providers. Where there is an employer-employee relationship (e.g., nurses and some doctors hired by the hospital), respondeat superior is the basis for liability. Respondeat superior means “let the master answer.” The idea behind this rule is to ensure that the employer, as supervisor, will enforce the proper work standards to avoid risk of harm.

Where the negligent actor is an independent contractor rather than an employee, respondeat will not apply. An institution usually does not exercise substantial control over the actions of independent contractors. Most doctors who work in private hospitals are independent contractors, as they do not draw a hospital salary, nor are their work hours and work duties controlled or defined by the hospital. Having physicians as independent contractors instead of employees thus inoculates the hospital from vicarious liability.

However, depending on the facts, some courts have used an underlying agency relationship to impute liability to the hospital (Sword v. NKC Hospitals, Inc., 714 N.E. 2d 142, Ind., 1999). Agency may be established if there is some degree of control, even if minimal, that is exerted on the doctor, especially where patients are not informed that their treating doctors are independent contractors. The relationship may be construed as an apparent or ostensible agency, where there is some representation that the doctor works for the hospital. Alternatively, when the patient relies on the hospital in seeking treatment, it is called agency by estoppel. Finally, courts have occasionally used the legal doctrine of nondelegable duty to find a hospital liable, holding that the services provided, as in the radiology or emergency departments, are a hospital's “inherent function.”

A recent Florida case that received prominent media coverage illustrates the issue of vicarious liability: The ship's doctor aboard a Carnival cruise ship failed to diagnose acute appendicitis in a 14-year-old girl with several days of abdominal symptoms. The patient's appendix ruptured, which eventually resulted in sterility. The parents sued the cruise line as a codefendant, which denied liability because the doctor was not an employee, a fact specifically disclosed on the cruise ticket. Although the doctor's contract stated that he was an independent contractor, the District Court of Appeal of Florida reasoned that in a claim based on agency, it is the right of control rather than actual control itself that matters. It therefore held that “for purposes of fulfilling cruise line's duty to exercise reasonable care, ship's doctor is an agent of cruise line whose negligence should be imputed to cruise line, regardless of contractual status ascribed to doctor” (Carlisle v. Carnival Corp., et al., 864 So.2d 1, 2003). However, the Florida Supreme Court subsequently quashed this decision because federal maritime law protects shipowners from liability flowing from the medical negligence of shipboard physicians (Carlisle v. Carnival Corp., et al., 953 So.2d 461, 2007).

Contact the author at [email protected].

Question: A patient developed severe headache and neck stiffness, which the emergency department (ED) doctor (ED-1) incorrectly diagnosed as a viral infection. The patient went home, but her condition did not improve, so her husband called the ED, where the on-call doctor (ED-2) answered some questions but did not encourage reevaluation because the ED was extremely busy at the time. The patient's condition deteriorated rapidly; she subsequently died, and autopsy revealed a massive subarachnoid bleed. Her husband sued both of the ED doctors as well as the hospital for malpractice. Neither ED-1 nor ED-2 is a hospital employee; they work as independent contractors and derive no salary or fringe benefits from the hospital. A prominent sign at the hospital entrance features these words: “Emergency Services: Physician on duty 24 hours.” Which of the following choices is correct?

A. ED-1 is not liable because he met the standard of care.

B. ED-2 is not liable because there was no doctor-patient relationship.

C. The hospital cannot be liable because it is not a person.

D. The hospital may be vicariously liable for the negligence of both ED-1 and ED-2 because they are akin to being employees.

E. The hospital may be vicariously liable for the negligence of both ED-1 and ED-2 because they are perceived as agents.

Answer: E. Whether ED-1 is liable will depend on whether the original medical history and physical findings were sufficient to raise the diagnosis of a subarachnoid bleed, and whether appropriate studies were undertaken. ED-1 will be judged by the standard ordinarily expected of any physician under similar circumstances. Although ED-2 did not directly examine the patient, there was a discussion with the husband, so it is likely ED-2 will be deemed to have established a doctor-patient relationship. Whether ED-2 breached the standard of care by failing to ask the patient to immediately return to the hospital will depend on the questions asked and the answers received. However, a busy ED is insufficient reason to dissuade a patient from being reevaluated if customary standards so dictate.

Any entity, not only a person, can be held liable for civil damages. Hospitals can therefore be asked to pay damages for any number of reasons, such as direct negligence, premise liability, etc. Vicarious liability is indirect legal liability, typically arising from an employer-employee relationship, which is not the situation here. However, vicarious liability can also arise from a principal-agent relationship, and under some circumstances, an independent contractor can be deemed to be an agent. The plaintiff will likely plead this theory by casting the ED physicians as ostensible agents; in other words, the hospital has held itself out to the public as a provider of care, as evidenced by the hospital sign that ED doctors were on duty 24 hours a day.

How can hospitals be held liable for the negligent acts of its doctors and staff? Vicarious liability is a legal doctrine in which a party is held legally responsible for the negligence of another because of its relationship to the wrongdoer. Courts have generally used the employer-employee or the agency principle to hold a hospital vicariously liable for the negligence of its health care providers. Where there is an employer-employee relationship (e.g., nurses and some doctors hired by the hospital), respondeat superior is the basis for liability. Respondeat superior means “let the master answer.” The idea behind this rule is to ensure that the employer, as supervisor, will enforce the proper work standards to avoid risk of harm.

Where the negligent actor is an independent contractor rather than an employee, respondeat will not apply. An institution usually does not exercise substantial control over the actions of independent contractors. Most doctors who work in private hospitals are independent contractors, as they do not draw a hospital salary, nor are their work hours and work duties controlled or defined by the hospital. Having physicians as independent contractors instead of employees thus inoculates the hospital from vicarious liability.

However, depending on the facts, some courts have used an underlying agency relationship to impute liability to the hospital (Sword v. NKC Hospitals, Inc., 714 N.E. 2d 142, Ind., 1999). Agency may be established if there is some degree of control, even if minimal, that is exerted on the doctor, especially where patients are not informed that their treating doctors are independent contractors. The relationship may be construed as an apparent or ostensible agency, where there is some representation that the doctor works for the hospital. Alternatively, when the patient relies on the hospital in seeking treatment, it is called agency by estoppel. Finally, courts have occasionally used the legal doctrine of nondelegable duty to find a hospital liable, holding that the services provided, as in the radiology or emergency departments, are a hospital's “inherent function.”

A recent Florida case that received prominent media coverage illustrates the issue of vicarious liability: The ship's doctor aboard a Carnival cruise ship failed to diagnose acute appendicitis in a 14-year-old girl with several days of abdominal symptoms. The patient's appendix ruptured, which eventually resulted in sterility. The parents sued the cruise line as a codefendant, which denied liability because the doctor was not an employee, a fact specifically disclosed on the cruise ticket. Although the doctor's contract stated that he was an independent contractor, the District Court of Appeal of Florida reasoned that in a claim based on agency, it is the right of control rather than actual control itself that matters. It therefore held that “for purposes of fulfilling cruise line's duty to exercise reasonable care, ship's doctor is an agent of cruise line whose negligence should be imputed to cruise line, regardless of contractual status ascribed to doctor” (Carlisle v. Carnival Corp., et al., 864 So.2d 1, 2003). However, the Florida Supreme Court subsequently quashed this decision because federal maritime law protects shipowners from liability flowing from the medical negligence of shipboard physicians (Carlisle v. Carnival Corp., et al., 953 So.2d 461, 2007).

Contact the author at [email protected].

Question: A patient developed severe headache and neck stiffness, which the emergency department (ED) doctor (ED-1) incorrectly diagnosed as a viral infection. The patient went home, but her condition did not improve, so her husband called the ED, where the on-call doctor (ED-2) answered some questions but did not encourage reevaluation because the ED was extremely busy at the time. The patient's condition deteriorated rapidly; she subsequently died, and autopsy revealed a massive subarachnoid bleed. Her husband sued both of the ED doctors as well as the hospital for malpractice. Neither ED-1 nor ED-2 is a hospital employee; they work as independent contractors and derive no salary or fringe benefits from the hospital. A prominent sign at the hospital entrance features these words: “Emergency Services: Physician on duty 24 hours.” Which of the following choices is correct?

A. ED-1 is not liable because he met the standard of care.

B. ED-2 is not liable because there was no doctor-patient relationship.

C. The hospital cannot be liable because it is not a person.

D. The hospital may be vicariously liable for the negligence of both ED-1 and ED-2 because they are akin to being employees.

E. The hospital may be vicariously liable for the negligence of both ED-1 and ED-2 because they are perceived as agents.

Answer: E. Whether ED-1 is liable will depend on whether the original medical history and physical findings were sufficient to raise the diagnosis of a subarachnoid bleed, and whether appropriate studies were undertaken. ED-1 will be judged by the standard ordinarily expected of any physician under similar circumstances. Although ED-2 did not directly examine the patient, there was a discussion with the husband, so it is likely ED-2 will be deemed to have established a doctor-patient relationship. Whether ED-2 breached the standard of care by failing to ask the patient to immediately return to the hospital will depend on the questions asked and the answers received. However, a busy ED is insufficient reason to dissuade a patient from being reevaluated if customary standards so dictate.

Any entity, not only a person, can be held liable for civil damages. Hospitals can therefore be asked to pay damages for any number of reasons, such as direct negligence, premise liability, etc. Vicarious liability is indirect legal liability, typically arising from an employer-employee relationship, which is not the situation here. However, vicarious liability can also arise from a principal-agent relationship, and under some circumstances, an independent contractor can be deemed to be an agent. The plaintiff will likely plead this theory by casting the ED physicians as ostensible agents; in other words, the hospital has held itself out to the public as a provider of care, as evidenced by the hospital sign that ED doctors were on duty 24 hours a day.

How can hospitals be held liable for the negligent acts of its doctors and staff? Vicarious liability is a legal doctrine in which a party is held legally responsible for the negligence of another because of its relationship to the wrongdoer. Courts have generally used the employer-employee or the agency principle to hold a hospital vicariously liable for the negligence of its health care providers. Where there is an employer-employee relationship (e.g., nurses and some doctors hired by the hospital), respondeat superior is the basis for liability. Respondeat superior means “let the master answer.” The idea behind this rule is to ensure that the employer, as supervisor, will enforce the proper work standards to avoid risk of harm.

Where the negligent actor is an independent contractor rather than an employee, respondeat will not apply. An institution usually does not exercise substantial control over the actions of independent contractors. Most doctors who work in private hospitals are independent contractors, as they do not draw a hospital salary, nor are their work hours and work duties controlled or defined by the hospital. Having physicians as independent contractors instead of employees thus inoculates the hospital from vicarious liability.

However, depending on the facts, some courts have used an underlying agency relationship to impute liability to the hospital (Sword v. NKC Hospitals, Inc., 714 N.E. 2d 142, Ind., 1999). Agency may be established if there is some degree of control, even if minimal, that is exerted on the doctor, especially where patients are not informed that their treating doctors are independent contractors. The relationship may be construed as an apparent or ostensible agency, where there is some representation that the doctor works for the hospital. Alternatively, when the patient relies on the hospital in seeking treatment, it is called agency by estoppel. Finally, courts have occasionally used the legal doctrine of nondelegable duty to find a hospital liable, holding that the services provided, as in the radiology or emergency departments, are a hospital's “inherent function.”

A recent Florida case that received prominent media coverage illustrates the issue of vicarious liability: The ship's doctor aboard a Carnival cruise ship failed to diagnose acute appendicitis in a 14-year-old girl with several days of abdominal symptoms. The patient's appendix ruptured, which eventually resulted in sterility. The parents sued the cruise line as a codefendant, which denied liability because the doctor was not an employee, a fact specifically disclosed on the cruise ticket. Although the doctor's contract stated that he was an independent contractor, the District Court of Appeal of Florida reasoned that in a claim based on agency, it is the right of control rather than actual control itself that matters. It therefore held that “for purposes of fulfilling cruise line's duty to exercise reasonable care, ship's doctor is an agent of cruise line whose negligence should be imputed to cruise line, regardless of contractual status ascribed to doctor” (Carlisle v. Carnival Corp., et al., 864 So.2d 1, 2003). However, the Florida Supreme Court subsequently quashed this decision because federal maritime law protects shipowners from liability flowing from the medical negligence of shipboard physicians (Carlisle v. Carnival Corp., et al., 953 So.2d 461, 2007).

Contact the author at [email protected].

Testing confusion delays breast cancer Dx

A WOMAN NOTICED A HARD SPOT IN HER LEFT BREAST in April and reported it to her physician in June. The doctor referred the 47-year-old patient to another physician, who performed a mammogram in early August. Four days later, the woman received a call directing her to return for imaging of her right breast. The patient claimed that when she told a radiology technician that she was concerned about her left breast, the technician replied that the order called for a right breast exam. Shortly thereafter, the patient received a letter informing her that everything was fine and instructing her to come back in a year.

She was still feeling the mass in her left breast when she returned for her annual exam the following August. A few weeks later, she was diagnosed with breast cancer. When the case went to trial, the patient had been told she had 2 years to live.

PLAINTIFF’S CLAIM: The plaintiff’s claim centered on the delay in her diagnosis, though the specifics were not detailed in the case summary.

DOCTORS’ DEFENSE: The defendants blamed each other for the delay; they also claimed that the patient should have kept complaining if she felt a mass. They further maintained that the required treatment would have been the same if the cancer had been diagnosed the previous year.

VERDICT: $4.5 million Missouri verdict (second physician, 85% at fault; radiology technician, 15% at fault).

COMMENT: What can go wrong does go wrong: A slip in communication and follow-up led to this $4.5 million verdict. Failure to make a timely diagnosis of breast cancer remains one of the most litigious areas in medicine.

Pulmonary disease masks lung cancer

A WOMAN WITH IDIOPATHIC PULMONARY FIBROSIS had been monitored by her physician for 7 years with physical exams, pulmonary function tests, and radiographic studies, including CT scans of the chest. During an office visit in October, the 57-year-old patient complained of increased difficulty breathing. A pulmonary function test and CT scan showed progression of the pulmonary fibrosis.

The following July, a pulmonary function test showed further deterioration of the patient’s condition, and the physician quadrupled her corticosteroid dosage. When the patient reported breathing problems again in December, a pulmonary function test showed continued decrease in breathing function.

Five months after that, the patient developed a malignant thigh lesion. A chest CT scan later that month revealed a lobular mass in the lower right lung, which had not appeared on the scan done a year and a half before. A biopsy revealed stage 4 adenocarcinoma. The woman died less than a month later of metastatic lung cancer.

PLAINTIFF’S CLAIM: The physician failed to follow up properly on the worsening fibrosis, allowing the cancer to grow un-detected. The physician should have ordered a CT scan in July or December.

DOCTOR’S DEFENSE: No negligence occurred; the patient didn’t complain much about her symptoms, and no signs or symptoms during her visits suggested that more tests should have been ordered. An earlier diagnosis wouldn’t have made a difference because the patient would not have been a candidate for surgery.

VERDICT: New York defense verdict.

COMMENT: Although a defense verdict was returned, we have to be careful not to overlook a serious new problem in the midst of a chronic disease—in this case, lung cancer against a background of pulmonary fibrosis.

Undiagnosed infection has disastrous results

WHILE HOSPITALIZED FOR ROUTINE POST-PARTUM CARE after the uneventful birth of her second child, a 37-year-old woman developed tachycardia and hypotension along with an expanding, excoriating wound on her labia. She claimed that the wound was treated only by applying ice and monitoring blood counts. The patient’s condition deteriorated until, on the third postpartum day, her blood pressure dropped and she coded. She was revived, and necrotizing fasciitis was diagnosed.

The woman spent 4 months in the ICU, during which time she underwent many surgeries to debride the wound as well as a nephrectomy and a permanent colostomy. The surgeries caused extensive scarring in the groin area. For 6 months after discharge from the ICU, the patient couldn’t walk without a cane or walker.

PLAINTIFF’S CLAIM: The specifics of the claim—which likely focused on the wound care she received and the delay in her diagnosis—were not detailed in the case summary.

DOCTOR’S DEFENSE: No negligence occurred. Necrotizing fasciitis is rare, and none of the health care providers should have been expected to diagnose it.

VERDICT: Confidential Nebraska settlement.

COMMENT: This case serves as a potent reminder of the serious nature of this dreaded infection.

Misdiagnosed chest pain leads to fatal MI

A 43-YEAR-OLD MAN, who smoked cigarettes and had a strong family history of coronary artery disease, had been under the care of a primary care physician for 3 years. The patient’s history also included at least 1 episode of chest pain.

The patient visited his physician complaining of intermittent chest pain for several days. He described 2 episodes of nausea, vomiting, and pain in his back teeth, followed by pain radiating down his right chest to the right costal margin. He had no symptoms during the office visit. The physician ordered an in-office EKG, which he interpreted as normal.

The physician diagnosed the chest pain as gastrointestinal in origin and prescribed an antacid. Because of the patient’s cardiac risk factors, the doctor scheduled a stress test and EKG for 2 days later.

On the morning of the stress test, the patient’s wife found him unresponsive. Resuscitation failed, and he was pronounced dead. An autopsy revealed severe proximal coronary artery disease of the left main coronary artery, left anterior descending coronary artery, and right coronary artery, as well as evidence of “remote and recent myocardial infarction.”

PLAINTIFF’S CLAIM: The EKG demonstrated significant changes compared with an EKG performed 3 years earlier and indicated that the patient was suffering an acute coronary episode. The doctor was negligent in failing to diagnose the episode and transfer the patient for proper cardiac care.

DOCTOR’S DEFENSE: The patient’s presentation indicated gastrointestinal distress; the EKG was normal.

VERDICT: $1.5 million Massachusetts settlement.

COMMENT: It’s imperative to compare EKGs, chest radiographs, and other tests with baseline results. How many times do you see an EKG that shows subtle but important changes that influence management?

Testing confusion delays breast cancer Dx

A WOMAN NOTICED A HARD SPOT IN HER LEFT BREAST in April and reported it to her physician in June. The doctor referred the 47-year-old patient to another physician, who performed a mammogram in early August. Four days later, the woman received a call directing her to return for imaging of her right breast. The patient claimed that when she told a radiology technician that she was concerned about her left breast, the technician replied that the order called for a right breast exam. Shortly thereafter, the patient received a letter informing her that everything was fine and instructing her to come back in a year.

She was still feeling the mass in her left breast when she returned for her annual exam the following August. A few weeks later, she was diagnosed with breast cancer. When the case went to trial, the patient had been told she had 2 years to live.

PLAINTIFF’S CLAIM: The plaintiff’s claim centered on the delay in her diagnosis, though the specifics were not detailed in the case summary.

DOCTORS’ DEFENSE: The defendants blamed each other for the delay; they also claimed that the patient should have kept complaining if she felt a mass. They further maintained that the required treatment would have been the same if the cancer had been diagnosed the previous year.

VERDICT: $4.5 million Missouri verdict (second physician, 85% at fault; radiology technician, 15% at fault).

COMMENT: What can go wrong does go wrong: A slip in communication and follow-up led to this $4.5 million verdict. Failure to make a timely diagnosis of breast cancer remains one of the most litigious areas in medicine.

Pulmonary disease masks lung cancer

A WOMAN WITH IDIOPATHIC PULMONARY FIBROSIS had been monitored by her physician for 7 years with physical exams, pulmonary function tests, and radiographic studies, including CT scans of the chest. During an office visit in October, the 57-year-old patient complained of increased difficulty breathing. A pulmonary function test and CT scan showed progression of the pulmonary fibrosis.

The following July, a pulmonary function test showed further deterioration of the patient’s condition, and the physician quadrupled her corticosteroid dosage. When the patient reported breathing problems again in December, a pulmonary function test showed continued decrease in breathing function.

Five months after that, the patient developed a malignant thigh lesion. A chest CT scan later that month revealed a lobular mass in the lower right lung, which had not appeared on the scan done a year and a half before. A biopsy revealed stage 4 adenocarcinoma. The woman died less than a month later of metastatic lung cancer.

PLAINTIFF’S CLAIM: The physician failed to follow up properly on the worsening fibrosis, allowing the cancer to grow un-detected. The physician should have ordered a CT scan in July or December.

DOCTOR’S DEFENSE: No negligence occurred; the patient didn’t complain much about her symptoms, and no signs or symptoms during her visits suggested that more tests should have been ordered. An earlier diagnosis wouldn’t have made a difference because the patient would not have been a candidate for surgery.

VERDICT: New York defense verdict.

COMMENT: Although a defense verdict was returned, we have to be careful not to overlook a serious new problem in the midst of a chronic disease—in this case, lung cancer against a background of pulmonary fibrosis.

Undiagnosed infection has disastrous results

WHILE HOSPITALIZED FOR ROUTINE POST-PARTUM CARE after the uneventful birth of her second child, a 37-year-old woman developed tachycardia and hypotension along with an expanding, excoriating wound on her labia. She claimed that the wound was treated only by applying ice and monitoring blood counts. The patient’s condition deteriorated until, on the third postpartum day, her blood pressure dropped and she coded. She was revived, and necrotizing fasciitis was diagnosed.

The woman spent 4 months in the ICU, during which time she underwent many surgeries to debride the wound as well as a nephrectomy and a permanent colostomy. The surgeries caused extensive scarring in the groin area. For 6 months after discharge from the ICU, the patient couldn’t walk without a cane or walker.

PLAINTIFF’S CLAIM: The specifics of the claim—which likely focused on the wound care she received and the delay in her diagnosis—were not detailed in the case summary.

DOCTOR’S DEFENSE: No negligence occurred. Necrotizing fasciitis is rare, and none of the health care providers should have been expected to diagnose it.

VERDICT: Confidential Nebraska settlement.

COMMENT: This case serves as a potent reminder of the serious nature of this dreaded infection.

Misdiagnosed chest pain leads to fatal MI

A 43-YEAR-OLD MAN, who smoked cigarettes and had a strong family history of coronary artery disease, had been under the care of a primary care physician for 3 years. The patient’s history also included at least 1 episode of chest pain.

The patient visited his physician complaining of intermittent chest pain for several days. He described 2 episodes of nausea, vomiting, and pain in his back teeth, followed by pain radiating down his right chest to the right costal margin. He had no symptoms during the office visit. The physician ordered an in-office EKG, which he interpreted as normal.

The physician diagnosed the chest pain as gastrointestinal in origin and prescribed an antacid. Because of the patient’s cardiac risk factors, the doctor scheduled a stress test and EKG for 2 days later.

On the morning of the stress test, the patient’s wife found him unresponsive. Resuscitation failed, and he was pronounced dead. An autopsy revealed severe proximal coronary artery disease of the left main coronary artery, left anterior descending coronary artery, and right coronary artery, as well as evidence of “remote and recent myocardial infarction.”

PLAINTIFF’S CLAIM: The EKG demonstrated significant changes compared with an EKG performed 3 years earlier and indicated that the patient was suffering an acute coronary episode. The doctor was negligent in failing to diagnose the episode and transfer the patient for proper cardiac care.

DOCTOR’S DEFENSE: The patient’s presentation indicated gastrointestinal distress; the EKG was normal.

VERDICT: $1.5 million Massachusetts settlement.

COMMENT: It’s imperative to compare EKGs, chest radiographs, and other tests with baseline results. How many times do you see an EKG that shows subtle but important changes that influence management?

Testing confusion delays breast cancer Dx

A WOMAN NOTICED A HARD SPOT IN HER LEFT BREAST in April and reported it to her physician in June. The doctor referred the 47-year-old patient to another physician, who performed a mammogram in early August. Four days later, the woman received a call directing her to return for imaging of her right breast. The patient claimed that when she told a radiology technician that she was concerned about her left breast, the technician replied that the order called for a right breast exam. Shortly thereafter, the patient received a letter informing her that everything was fine and instructing her to come back in a year.

She was still feeling the mass in her left breast when she returned for her annual exam the following August. A few weeks later, she was diagnosed with breast cancer. When the case went to trial, the patient had been told she had 2 years to live.

PLAINTIFF’S CLAIM: The plaintiff’s claim centered on the delay in her diagnosis, though the specifics were not detailed in the case summary.

DOCTORS’ DEFENSE: The defendants blamed each other for the delay; they also claimed that the patient should have kept complaining if she felt a mass. They further maintained that the required treatment would have been the same if the cancer had been diagnosed the previous year.

VERDICT: $4.5 million Missouri verdict (second physician, 85% at fault; radiology technician, 15% at fault).

COMMENT: What can go wrong does go wrong: A slip in communication and follow-up led to this $4.5 million verdict. Failure to make a timely diagnosis of breast cancer remains one of the most litigious areas in medicine.

Pulmonary disease masks lung cancer

A WOMAN WITH IDIOPATHIC PULMONARY FIBROSIS had been monitored by her physician for 7 years with physical exams, pulmonary function tests, and radiographic studies, including CT scans of the chest. During an office visit in October, the 57-year-old patient complained of increased difficulty breathing. A pulmonary function test and CT scan showed progression of the pulmonary fibrosis.

The following July, a pulmonary function test showed further deterioration of the patient’s condition, and the physician quadrupled her corticosteroid dosage. When the patient reported breathing problems again in December, a pulmonary function test showed continued decrease in breathing function.

Five months after that, the patient developed a malignant thigh lesion. A chest CT scan later that month revealed a lobular mass in the lower right lung, which had not appeared on the scan done a year and a half before. A biopsy revealed stage 4 adenocarcinoma. The woman died less than a month later of metastatic lung cancer.

PLAINTIFF’S CLAIM: The physician failed to follow up properly on the worsening fibrosis, allowing the cancer to grow un-detected. The physician should have ordered a CT scan in July or December.

DOCTOR’S DEFENSE: No negligence occurred; the patient didn’t complain much about her symptoms, and no signs or symptoms during her visits suggested that more tests should have been ordered. An earlier diagnosis wouldn’t have made a difference because the patient would not have been a candidate for surgery.

VERDICT: New York defense verdict.

COMMENT: Although a defense verdict was returned, we have to be careful not to overlook a serious new problem in the midst of a chronic disease—in this case, lung cancer against a background of pulmonary fibrosis.

Undiagnosed infection has disastrous results

WHILE HOSPITALIZED FOR ROUTINE POST-PARTUM CARE after the uneventful birth of her second child, a 37-year-old woman developed tachycardia and hypotension along with an expanding, excoriating wound on her labia. She claimed that the wound was treated only by applying ice and monitoring blood counts. The patient’s condition deteriorated until, on the third postpartum day, her blood pressure dropped and she coded. She was revived, and necrotizing fasciitis was diagnosed.

The woman spent 4 months in the ICU, during which time she underwent many surgeries to debride the wound as well as a nephrectomy and a permanent colostomy. The surgeries caused extensive scarring in the groin area. For 6 months after discharge from the ICU, the patient couldn’t walk without a cane or walker.

PLAINTIFF’S CLAIM: The specifics of the claim—which likely focused on the wound care she received and the delay in her diagnosis—were not detailed in the case summary.

DOCTOR’S DEFENSE: No negligence occurred. Necrotizing fasciitis is rare, and none of the health care providers should have been expected to diagnose it.

VERDICT: Confidential Nebraska settlement.

COMMENT: This case serves as a potent reminder of the serious nature of this dreaded infection.

Misdiagnosed chest pain leads to fatal MI

A 43-YEAR-OLD MAN, who smoked cigarettes and had a strong family history of coronary artery disease, had been under the care of a primary care physician for 3 years. The patient’s history also included at least 1 episode of chest pain.

The patient visited his physician complaining of intermittent chest pain for several days. He described 2 episodes of nausea, vomiting, and pain in his back teeth, followed by pain radiating down his right chest to the right costal margin. He had no symptoms during the office visit. The physician ordered an in-office EKG, which he interpreted as normal.

The physician diagnosed the chest pain as gastrointestinal in origin and prescribed an antacid. Because of the patient’s cardiac risk factors, the doctor scheduled a stress test and EKG for 2 days later.

On the morning of the stress test, the patient’s wife found him unresponsive. Resuscitation failed, and he was pronounced dead. An autopsy revealed severe proximal coronary artery disease of the left main coronary artery, left anterior descending coronary artery, and right coronary artery, as well as evidence of “remote and recent myocardial infarction.”

PLAINTIFF’S CLAIM: The EKG demonstrated significant changes compared with an EKG performed 3 years earlier and indicated that the patient was suffering an acute coronary episode. The doctor was negligent in failing to diagnose the episode and transfer the patient for proper cardiac care.

DOCTOR’S DEFENSE: The patient’s presentation indicated gastrointestinal distress; the EKG was normal.

VERDICT: $1.5 million Massachusetts settlement.

COMMENT: It’s imperative to compare EKGs, chest radiographs, and other tests with baseline results. How many times do you see an EKG that shows subtle but important changes that influence management?

A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is entirely asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. Unfortunately, before she can do so, she sustains a massive stroke. Regarding possible negligence in this case, the doctor is negligent in failing to routinely screen for hypertension. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C. App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is entirely asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. Unfortunately, before she can do so, she sustains a massive stroke. Regarding possible negligence in this case, the doctor is negligent in failing to routinely screen for hypertension. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C. App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is entirely asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. Unfortunately, before she can do so, she sustains a massive stroke. Regarding possible negligence in this case, the doctor is negligent in failing to routinely screen for hypertension. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C. App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

Question: A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. But before she can do so, she sustains a massive stroke. Regarding possible negligence in this hypothetical case, which of the following is correct?

A. The doctor is negligent in failing to routinely screen for hypertension.

B. The doctor escapes liability because there is no assurance that earlier diagnosis or therapy would have prevented the stroke.

C. The risk of a stroke in hypertensive patients is less than 50%, so the plaintiff will likely lose the case.

D. The doctor should have immediately hospitalized the patient to give her a better chance of survival.

E. The proximate cause of the injury was the patient's underlying hypertension and complicating stroke rather than delayed diagnosis, which merely increased her theoretical risk.

Answer: A. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission (we assume that the hypertension was present and detectable if the patient had been screened earlier) can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine. The doctor's treatment and referral otherwise met the usual standard of care.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

A series of cases from Kansas addresses this controversy. The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one case, expert testimony established that the plaintiff would have had a 51% chance of 5-year survival if her lung cancer had been diagnosed in a timely way. The court ruled this met the causation burden, but went on to state that a plaintiff could recover for the loss of any appreciable chance, not just one exceeding 50% (Boody v. United States, 706 F.Supp.1458, Kan. 1989). In another ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C.App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

Contact the author at [email protected].

Question: A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. But before she can do so, she sustains a massive stroke. Regarding possible negligence in this hypothetical case, which of the following is correct?

A. The doctor is negligent in failing to routinely screen for hypertension.

B. The doctor escapes liability because there is no assurance that earlier diagnosis or therapy would have prevented the stroke.

C. The risk of a stroke in hypertensive patients is less than 50%, so the plaintiff will likely lose the case.

D. The doctor should have immediately hospitalized the patient to give her a better chance of survival.

E. The proximate cause of the injury was the patient's underlying hypertension and complicating stroke rather than delayed diagnosis, which merely increased her theoretical risk.

Answer: A. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission (we assume that the hypertension was present and detectable if the patient had been screened earlier) can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine. The doctor's treatment and referral otherwise met the usual standard of care.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

A series of cases from Kansas addresses this controversy. The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one case, expert testimony established that the plaintiff would have had a 51% chance of 5-year survival if her lung cancer had been diagnosed in a timely way. The court ruled this met the causation burden, but went on to state that a plaintiff could recover for the loss of any appreciable chance, not just one exceeding 50% (Boody v. United States, 706 F.Supp.1458, Kan. 1989). In another ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C.App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

Contact the author at [email protected].

Question: A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. But before she can do so, she sustains a massive stroke. Regarding possible negligence in this hypothetical case, which of the following is correct?

A. The doctor is negligent in failing to routinely screen for hypertension.

B. The doctor escapes liability because there is no assurance that earlier diagnosis or therapy would have prevented the stroke.

C. The risk of a stroke in hypertensive patients is less than 50%, so the plaintiff will likely lose the case.

D. The doctor should have immediately hospitalized the patient to give her a better chance of survival.

E. The proximate cause of the injury was the patient's underlying hypertension and complicating stroke rather than delayed diagnosis, which merely increased her theoretical risk.

Answer: A. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission (we assume that the hypertension was present and detectable if the patient had been screened earlier) can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine. The doctor's treatment and referral otherwise met the usual standard of care.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

A series of cases from Kansas addresses this controversy. The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one case, expert testimony established that the plaintiff would have had a 51% chance of 5-year survival if her lung cancer had been diagnosed in a timely way. The court ruled this met the causation burden, but went on to state that a plaintiff could recover for the loss of any appreciable chance, not just one exceeding 50% (Boody v. United States, 706 F.Supp.1458, Kan. 1989). In another ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C.App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

Contact the author at [email protected].