Law & Medicine

Sepsis Following Vaginal Hysterectomy

The patient’s vital signs were: temperature, 98.6˚F; blood pressure, 112/65 mm Hg; heart rate, 98 beats/minute; and respiratory rate, 20 breaths/minute. The head, eyes, ears, nose, and throat examination was normal, as were the heart and lung examinations. The patient’s abdomen was soft, with mild diffuse lower abdominal tenderness. There was no guarding, rebound, or mass present. A gross nonspeculum examination of the vaginal area did not reveal any discharge or erythema; a rectal examination was not performed.

The EP ordered a complete blood count (CBC), lipase evaluation, and urinalysis. All test results were normal. The emergency physician (EP) then contacted the obstetrician-gynecologist (OB/GYN) who had performed the hysterectomy. The OB/GYN recommended the EP change the analgesic agent to acetaminophen-oxycodone and to encourage the patient to keep her follow-up postoperative appointment in 1 week. The EP followed these instructions and discharged the patient home with a prescription for the new analgesic.

Three days later, however, the patient presented back to the same ED complaining of increased and now generalized abdominal pain, nausea, and vomiting. She was noted to be febrile, tachycardic, and hypotensive. On physical examination, her abdomen was diffusely tender with guarding and rebound. She was given a 2-L bolus of intravenous (IV) normal saline and started on broad spectrum IV antibiotics. After another consultation with the patient’s OB/GYN surgeon, the patient was taken immediately to the operating room. On exploration, she was found to have a segment of perforated bowel and peritonitis. A portion of the bowel was resected, but her postoperative course was complicated by sepsis. After a 1-month stay in the hospital, she was discharged home.

The patient sued the EP—but not her OB/GYN—for failure to obtain a CT scan of the abdomen/pelvis on her initial ED visit, or at least to admit her to the hospital for observation. The EP argued that even if a computed tomography (CT) scan had been performed on the initial visit, it probably would have been normal, since the bowel had not yet perforated. After trial, a defense verdict was returned.

Discussion

This case illustrates two important points. First, not every patient with abdominal pain requires a CT scan of the abdomen/pelvis. So many malpractice cases against EPs involve the failure to perform advanced imaging. Unfortunately, that is usually only through the benefit of hindsight. For a patient with mild abdominal pain, only minimal tenderness on examination, and a negative laboratory workup, it can be perfectly appropriate to treat him or her symptomatically with close follow-up and specific instructions to return to the ED if his or her condition worsens (as was the case with this patient).

The second important point is to not over-rely on a consultant(s), especially if she or he has not independently examined the patient. When calling a consultant, it is best to have a specific question (ie, “Can you see the patient in the morning?”) or action (ie, “I would like to admit the patient to your service”). In general, the EP should not rely on the consultant to give “permission” to discharge the patient. As the physician seeing the patient, the EP is the most well-equipped to work up the patient and determine the needed disposition. Rare is the consultant that can arrive at a better disposition than the EP who performed the history and physical examination on the patient.

Regarding the patient’s GYN surgery, vaginal hysterectomy (VH) is preferred over abdominal hysterectomy (AH) for benign disease as it is associated with reduced infective morbidity and earlier return to normal activities.¹ With respect to postoperative events, clinicians typically employ the Clavien-Dindo grading system for the classification of surgical complications.² The system consists of five grades, ranging from Grade I (any deviation from normal postoperative course, without the need for pharmacological intervention) to Grade V (death).

Following hysterectomy, postoperative urinary or pelvic infections are not uncommon, with an incidence of 15% to 20%.¹ In the Clavien-Dindo system, these complications would typically be considered Grade II (pharmacological treatment other than what is considered an acceptable therapeutic regimen),  requiring antibiotics and no surgical intervention. Grade III complications, however, usually involve postoperative issues that require surgical, endoscopic, or radiological intervention, which in VH would include ureteral, bladder, or bowel injury.¹ In a study by Gendy et al,¹ the incidence of such complications posthysterectomy, ranged from 1.7% to 5.7%. So while not extremely common, serious complications can occur postoperatively.

The last point is a minor one, but a truth every EP needs to remember: While it may be difficult for a patient to sue her or his own physician, especially one with whom she or he has a longstanding patient-physician relationship, it is much easier for her or him to place blame upon and sue another physician—for example, the EP.

Missed Testicular Torsion?

The patient was a well appearing teenager in no acute distress. All vital signs were normal, as were the heart and lung examinations. The abdominal examination revealed mild, generalized tenderness without guarding or rebound. The genitalia examination was normal.

The EP ordered a CBC, urinalysis, and a testicular ultrasound, the results of which were all normal. The patient was discharged home with instructions to follow up with his pediatrician in 2 days and to return to the ED if his symptoms worsened.

The patient was seen by his pediatrician approximately 1 month later for his scheduled annual physical examination. The pediatrician, who was aware of the boy’s prior ED visit, found the patient in good health, and performed no additional testing.

Approximately 9 months after the initial ED visit, the patient was accidently kicked in the groin while jumping on a trampoline. He experienced immediate onset of severe, excruciating right testicular pain and presented to the ED approximately 24 hours later with continued pain and swelling. A testicular ultrasound was immediately ordered and demonstrated an enlarged right testicle due to torsion.

The patient underwent surgery to remove the right testicle. His family sued the EP and hospital from the initial visit (9 months earlier) for missed intermittent testicular torsion. They argued that the patient should have been referred to a urologist for further evaluation. In addition, the plaintiff claimed he could no longer participate in sports and suffered disfigurement as a result of the surgery. The EP asserted that the patient’s pain during that initial visit was primarily abdominal in nature and that an ultrasound of the testicles was normal, and did not reveal any evidence of testicular torsion. The EP further argued that the testicular torsion was due to the trauma incurred on the trampoline. According to published accounts, a defense verdict was returned.

Discussion

Testicular torsion occurs in a bimodal age distribution—during the first year of life (perinatal) and between ages 13 and 16 years (as was the case with this patient).¹ In approximately 4% to 8% of patients, there is a history of an athletic event, strenuous physical activity, or trauma just prior to the onset of scrotal pain.² 

Patients typically present with sudden onset of testicular pain that is frequently associated with nausea and vomiting. However, this condition can present with only lower abdominal pain—in part be due to the fact that adolescents and children may be reluctant to complain of testicular or scrotal pain out of fear or embarrassment.¹ In all cases, a genital examination should be performed on every adolescent male with a chief complaint of lower abdominal pain.³

On physical examination, the patient will usually have a swollen tender testicle. In comparison to the opposite side, the affected testicle is frequently raised and rests on a horizontal axis. The cremasteric reflex (ie, scratching the proximal inner thigh causes the ipsilateral testicle to rise) is frequently absent.⁴

Because of the time sensitive nature of the disease process, in classic presentations, a urologist should be immediately consulted. Ischemic changes to the testicle can begin within hours, and complete testicular atrophy occurs after 24 hours in most cases.⁴ Detorsion within 6 hours of onset of symptoms has a salvage rate of 90% to 100%, which drops to 25% to 50% after 12 hours and to less than 10% after 24 hours.⁴

For less obvious cases, color duplex testicular ultrasonography can be very helpful. Demonstration of decreased or absent blood flow is diagnostic and requires operative intervention. If untwisting the testis restores blood flow, then the condition is resolved; if this procedure fails, the testis is removed. Regardless of the outcome, the contralateral testis is fixed to prevent future torsion.

Intermittent testicular torsion is a difficult diagnosis to make. A history of recurrent unilateral scrotal pain is highly suspicious and warrants referral to a urologist. This patient had only one previous episode, which was primarily abdominal pain—not scrotal or testicular pain.

In this case, it appears the jury came to the correct decision. Given the patient had only one previous episode of abdominal pain, and an inciting event (trauma to the testicle) on the second presentation, this does not appear to be a case of missed intermittent testicular torsion. Rather, this was a correctly diagnosed testicular torsion with a delayed presentation, resulting in an unsalvageable testicle.

Sepsis Following Vaginal Hysterectomy

The patient’s vital signs were: temperature, 98.6˚F; blood pressure, 112/65 mm Hg; heart rate, 98 beats/minute; and respiratory rate, 20 breaths/minute. The head, eyes, ears, nose, and throat examination was normal, as were the heart and lung examinations. The patient’s abdomen was soft, with mild diffuse lower abdominal tenderness. There was no guarding, rebound, or mass present. A gross nonspeculum examination of the vaginal area did not reveal any discharge or erythema; a rectal examination was not performed.

The EP ordered a complete blood count (CBC), lipase evaluation, and urinalysis. All test results were normal. The emergency physician (EP) then contacted the obstetrician-gynecologist (OB/GYN) who had performed the hysterectomy. The OB/GYN recommended the EP change the analgesic agent to acetaminophen-oxycodone and to encourage the patient to keep her follow-up postoperative appointment in 1 week. The EP followed these instructions and discharged the patient home with a prescription for the new analgesic.

Three days later, however, the patient presented back to the same ED complaining of increased and now generalized abdominal pain, nausea, and vomiting. She was noted to be febrile, tachycardic, and hypotensive. On physical examination, her abdomen was diffusely tender with guarding and rebound. She was given a 2-L bolus of intravenous (IV) normal saline and started on broad spectrum IV antibiotics. After another consultation with the patient’s OB/GYN surgeon, the patient was taken immediately to the operating room. On exploration, she was found to have a segment of perforated bowel and peritonitis. A portion of the bowel was resected, but her postoperative course was complicated by sepsis. After a 1-month stay in the hospital, she was discharged home.

The patient sued the EP—but not her OB/GYN—for failure to obtain a CT scan of the abdomen/pelvis on her initial ED visit, or at least to admit her to the hospital for observation. The EP argued that even if a computed tomography (CT) scan had been performed on the initial visit, it probably would have been normal, since the bowel had not yet perforated. After trial, a defense verdict was returned.

Discussion

This case illustrates two important points. First, not every patient with abdominal pain requires a CT scan of the abdomen/pelvis. So many malpractice cases against EPs involve the failure to perform advanced imaging. Unfortunately, that is usually only through the benefit of hindsight. For a patient with mild abdominal pain, only minimal tenderness on examination, and a negative laboratory workup, it can be perfectly appropriate to treat him or her symptomatically with close follow-up and specific instructions to return to the ED if his or her condition worsens (as was the case with this patient).

The second important point is to not over-rely on a consultant(s), especially if she or he has not independently examined the patient. When calling a consultant, it is best to have a specific question (ie, “Can you see the patient in the morning?”) or action (ie, “I would like to admit the patient to your service”). In general, the EP should not rely on the consultant to give “permission” to discharge the patient. As the physician seeing the patient, the EP is the most well-equipped to work up the patient and determine the needed disposition. Rare is the consultant that can arrive at a better disposition than the EP who performed the history and physical examination on the patient.

Regarding the patient’s GYN surgery, vaginal hysterectomy (VH) is preferred over abdominal hysterectomy (AH) for benign disease as it is associated with reduced infective morbidity and earlier return to normal activities.¹ With respect to postoperative events, clinicians typically employ the Clavien-Dindo grading system for the classification of surgical complications.² The system consists of five grades, ranging from Grade I (any deviation from normal postoperative course, without the need for pharmacological intervention) to Grade V (death).

Following hysterectomy, postoperative urinary or pelvic infections are not uncommon, with an incidence of 15% to 20%.¹ In the Clavien-Dindo system, these complications would typically be considered Grade II (pharmacological treatment other than what is considered an acceptable therapeutic regimen),  requiring antibiotics and no surgical intervention. Grade III complications, however, usually involve postoperative issues that require surgical, endoscopic, or radiological intervention, which in VH would include ureteral, bladder, or bowel injury.¹ In a study by Gendy et al,¹ the incidence of such complications posthysterectomy, ranged from 1.7% to 5.7%. So while not extremely common, serious complications can occur postoperatively.

The last point is a minor one, but a truth every EP needs to remember: While it may be difficult for a patient to sue her or his own physician, especially one with whom she or he has a longstanding patient-physician relationship, it is much easier for her or him to place blame upon and sue another physician—for example, the EP.

Missed Testicular Torsion?

The patient was a well appearing teenager in no acute distress. All vital signs were normal, as were the heart and lung examinations. The abdominal examination revealed mild, generalized tenderness without guarding or rebound. The genitalia examination was normal.

The EP ordered a CBC, urinalysis, and a testicular ultrasound, the results of which were all normal. The patient was discharged home with instructions to follow up with his pediatrician in 2 days and to return to the ED if his symptoms worsened.

The patient was seen by his pediatrician approximately 1 month later for his scheduled annual physical examination. The pediatrician, who was aware of the boy’s prior ED visit, found the patient in good health, and performed no additional testing.

Approximately 9 months after the initial ED visit, the patient was accidently kicked in the groin while jumping on a trampoline. He experienced immediate onset of severe, excruciating right testicular pain and presented to the ED approximately 24 hours later with continued pain and swelling. A testicular ultrasound was immediately ordered and demonstrated an enlarged right testicle due to torsion.

The patient underwent surgery to remove the right testicle. His family sued the EP and hospital from the initial visit (9 months earlier) for missed intermittent testicular torsion. They argued that the patient should have been referred to a urologist for further evaluation. In addition, the plaintiff claimed he could no longer participate in sports and suffered disfigurement as a result of the surgery. The EP asserted that the patient’s pain during that initial visit was primarily abdominal in nature and that an ultrasound of the testicles was normal, and did not reveal any evidence of testicular torsion. The EP further argued that the testicular torsion was due to the trauma incurred on the trampoline. According to published accounts, a defense verdict was returned.

Discussion

Testicular torsion occurs in a bimodal age distribution—during the first year of life (perinatal) and between ages 13 and 16 years (as was the case with this patient).¹ In approximately 4% to 8% of patients, there is a history of an athletic event, strenuous physical activity, or trauma just prior to the onset of scrotal pain.² 

Patients typically present with sudden onset of testicular pain that is frequently associated with nausea and vomiting. However, this condition can present with only lower abdominal pain—in part be due to the fact that adolescents and children may be reluctant to complain of testicular or scrotal pain out of fear or embarrassment.¹ In all cases, a genital examination should be performed on every adolescent male with a chief complaint of lower abdominal pain.³

On physical examination, the patient will usually have a swollen tender testicle. In comparison to the opposite side, the affected testicle is frequently raised and rests on a horizontal axis. The cremasteric reflex (ie, scratching the proximal inner thigh causes the ipsilateral testicle to rise) is frequently absent.⁴

Because of the time sensitive nature of the disease process, in classic presentations, a urologist should be immediately consulted. Ischemic changes to the testicle can begin within hours, and complete testicular atrophy occurs after 24 hours in most cases.⁴ Detorsion within 6 hours of onset of symptoms has a salvage rate of 90% to 100%, which drops to 25% to 50% after 12 hours and to less than 10% after 24 hours.⁴

For less obvious cases, color duplex testicular ultrasonography can be very helpful. Demonstration of decreased or absent blood flow is diagnostic and requires operative intervention. If untwisting the testis restores blood flow, then the condition is resolved; if this procedure fails, the testis is removed. Regardless of the outcome, the contralateral testis is fixed to prevent future torsion.

Intermittent testicular torsion is a difficult diagnosis to make. A history of recurrent unilateral scrotal pain is highly suspicious and warrants referral to a urologist. This patient had only one previous episode, which was primarily abdominal pain—not scrotal or testicular pain.

In this case, it appears the jury came to the correct decision. Given the patient had only one previous episode of abdominal pain, and an inciting event (trauma to the testicle) on the second presentation, this does not appear to be a case of missed intermittent testicular torsion. Rather, this was a correctly diagnosed testicular torsion with a delayed presentation, resulting in an unsalvageable testicle.

Sepsis Following Vaginal Hysterectomy

The patient’s vital signs were: temperature, 98.6˚F; blood pressure, 112/65 mm Hg; heart rate, 98 beats/minute; and respiratory rate, 20 breaths/minute. The head, eyes, ears, nose, and throat examination was normal, as were the heart and lung examinations. The patient’s abdomen was soft, with mild diffuse lower abdominal tenderness. There was no guarding, rebound, or mass present. A gross nonspeculum examination of the vaginal area did not reveal any discharge or erythema; a rectal examination was not performed.

The EP ordered a complete blood count (CBC), lipase evaluation, and urinalysis. All test results were normal. The emergency physician (EP) then contacted the obstetrician-gynecologist (OB/GYN) who had performed the hysterectomy. The OB/GYN recommended the EP change the analgesic agent to acetaminophen-oxycodone and to encourage the patient to keep her follow-up postoperative appointment in 1 week. The EP followed these instructions and discharged the patient home with a prescription for the new analgesic.

Three days later, however, the patient presented back to the same ED complaining of increased and now generalized abdominal pain, nausea, and vomiting. She was noted to be febrile, tachycardic, and hypotensive. On physical examination, her abdomen was diffusely tender with guarding and rebound. She was given a 2-L bolus of intravenous (IV) normal saline and started on broad spectrum IV antibiotics. After another consultation with the patient’s OB/GYN surgeon, the patient was taken immediately to the operating room. On exploration, she was found to have a segment of perforated bowel and peritonitis. A portion of the bowel was resected, but her postoperative course was complicated by sepsis. After a 1-month stay in the hospital, she was discharged home.

The patient sued the EP—but not her OB/GYN—for failure to obtain a CT scan of the abdomen/pelvis on her initial ED visit, or at least to admit her to the hospital for observation. The EP argued that even if a computed tomography (CT) scan had been performed on the initial visit, it probably would have been normal, since the bowel had not yet perforated. After trial, a defense verdict was returned.

Discussion

This case illustrates two important points. First, not every patient with abdominal pain requires a CT scan of the abdomen/pelvis. So many malpractice cases against EPs involve the failure to perform advanced imaging. Unfortunately, that is usually only through the benefit of hindsight. For a patient with mild abdominal pain, only minimal tenderness on examination, and a negative laboratory workup, it can be perfectly appropriate to treat him or her symptomatically with close follow-up and specific instructions to return to the ED if his or her condition worsens (as was the case with this patient).

The second important point is to not over-rely on a consultant(s), especially if she or he has not independently examined the patient. When calling a consultant, it is best to have a specific question (ie, “Can you see the patient in the morning?”) or action (ie, “I would like to admit the patient to your service”). In general, the EP should not rely on the consultant to give “permission” to discharge the patient. As the physician seeing the patient, the EP is the most well-equipped to work up the patient and determine the needed disposition. Rare is the consultant that can arrive at a better disposition than the EP who performed the history and physical examination on the patient.

Regarding the patient’s GYN surgery, vaginal hysterectomy (VH) is preferred over abdominal hysterectomy (AH) for benign disease as it is associated with reduced infective morbidity and earlier return to normal activities.¹ With respect to postoperative events, clinicians typically employ the Clavien-Dindo grading system for the classification of surgical complications.² The system consists of five grades, ranging from Grade I (any deviation from normal postoperative course, without the need for pharmacological intervention) to Grade V (death).

Following hysterectomy, postoperative urinary or pelvic infections are not uncommon, with an incidence of 15% to 20%.¹ In the Clavien-Dindo system, these complications would typically be considered Grade II (pharmacological treatment other than what is considered an acceptable therapeutic regimen),  requiring antibiotics and no surgical intervention. Grade III complications, however, usually involve postoperative issues that require surgical, endoscopic, or radiological intervention, which in VH would include ureteral, bladder, or bowel injury.¹ In a study by Gendy et al,¹ the incidence of such complications posthysterectomy, ranged from 1.7% to 5.7%. So while not extremely common, serious complications can occur postoperatively.

The last point is a minor one, but a truth every EP needs to remember: While it may be difficult for a patient to sue her or his own physician, especially one with whom she or he has a longstanding patient-physician relationship, it is much easier for her or him to place blame upon and sue another physician—for example, the EP.

Missed Testicular Torsion?

The patient was a well appearing teenager in no acute distress. All vital signs were normal, as were the heart and lung examinations. The abdominal examination revealed mild, generalized tenderness without guarding or rebound. The genitalia examination was normal.

The EP ordered a CBC, urinalysis, and a testicular ultrasound, the results of which were all normal. The patient was discharged home with instructions to follow up with his pediatrician in 2 days and to return to the ED if his symptoms worsened.

The patient was seen by his pediatrician approximately 1 month later for his scheduled annual physical examination. The pediatrician, who was aware of the boy’s prior ED visit, found the patient in good health, and performed no additional testing.

Approximately 9 months after the initial ED visit, the patient was accidently kicked in the groin while jumping on a trampoline. He experienced immediate onset of severe, excruciating right testicular pain and presented to the ED approximately 24 hours later with continued pain and swelling. A testicular ultrasound was immediately ordered and demonstrated an enlarged right testicle due to torsion.

The patient underwent surgery to remove the right testicle. His family sued the EP and hospital from the initial visit (9 months earlier) for missed intermittent testicular torsion. They argued that the patient should have been referred to a urologist for further evaluation. In addition, the plaintiff claimed he could no longer participate in sports and suffered disfigurement as a result of the surgery. The EP asserted that the patient’s pain during that initial visit was primarily abdominal in nature and that an ultrasound of the testicles was normal, and did not reveal any evidence of testicular torsion. The EP further argued that the testicular torsion was due to the trauma incurred on the trampoline. According to published accounts, a defense verdict was returned.

Discussion

Testicular torsion occurs in a bimodal age distribution—during the first year of life (perinatal) and between ages 13 and 16 years (as was the case with this patient).¹ In approximately 4% to 8% of patients, there is a history of an athletic event, strenuous physical activity, or trauma just prior to the onset of scrotal pain.² 

Patients typically present with sudden onset of testicular pain that is frequently associated with nausea and vomiting. However, this condition can present with only lower abdominal pain—in part be due to the fact that adolescents and children may be reluctant to complain of testicular or scrotal pain out of fear or embarrassment.¹ In all cases, a genital examination should be performed on every adolescent male with a chief complaint of lower abdominal pain.³

On physical examination, the patient will usually have a swollen tender testicle. In comparison to the opposite side, the affected testicle is frequently raised and rests on a horizontal axis. The cremasteric reflex (ie, scratching the proximal inner thigh causes the ipsilateral testicle to rise) is frequently absent.⁴

Because of the time sensitive nature of the disease process, in classic presentations, a urologist should be immediately consulted. Ischemic changes to the testicle can begin within hours, and complete testicular atrophy occurs after 24 hours in most cases.⁴ Detorsion within 6 hours of onset of symptoms has a salvage rate of 90% to 100%, which drops to 25% to 50% after 12 hours and to less than 10% after 24 hours.⁴

For less obvious cases, color duplex testicular ultrasonography can be very helpful. Demonstration of decreased or absent blood flow is diagnostic and requires operative intervention. If untwisting the testis restores blood flow, then the condition is resolved; if this procedure fails, the testis is removed. Regardless of the outcome, the contralateral testis is fixed to prevent future torsion.

Intermittent testicular torsion is a difficult diagnosis to make. A history of recurrent unilateral scrotal pain is highly suspicious and warrants referral to a urologist. This patient had only one previous episode, which was primarily abdominal pain—not scrotal or testicular pain.

In this case, it appears the jury came to the correct decision. Given the patient had only one previous episode of abdominal pain, and an inciting event (trauma to the testicle) on the second presentation, this does not appear to be a case of missed intermittent testicular torsion. Rather, this was a correctly diagnosed testicular torsion with a delayed presentation, resulting in an unsalvageable testicle.

Question: A patient who is a school bus driver is also an alcoholic, but he continues to drive despite his physician’s warning against drinking and driving. He already has had one prior driving under the influence (DUI) conviction. Fearing a potential vehicular accident with injuries to the schoolchildren, the physician, with permission, informed the patient’s wife of the situation; but that did not make a difference.

Under the circumstances, which of the following is best?

A. The physician has discharged his professional duty by warning the patient and informing his wife.

B. It is unethical for the physician to report this to the employer, because it violates the principle of confidentiality.

C. The physician may have an ethical and legal duty to report, because the risk of harm to the school children is foreseeable and outweighs other considerations.

D. A and B.

E. A and C.

Answer: C. The issue in this hypothetical revolves around the failure to warn and report when a doctor has determined that his or her patient poses a significant societal risk. It places the health care provider in a dilemma, because it pits patient confidentiality against the public interest in safety.

There does not appear to be an appellate case precisely on point, but the well known case of Tarasoff¹ offers useful insight.

In Tarasoff, a California court imposed a legal duty on a college psychologist to warn an intended victim of harm, even though that meant breaching confidentiality in a professional relationship. A jilted patient had confided in the university psychologist his intention to kill his ex-girlfriend. The information, though shared with campus security, was not released to the intended victim, the girlfriend, whom the patient stabbed to death 2 months later.

The California court found the psychologist and the University of California (as the psychologist’s employer) liable, reasoning that the protection of public safety was more important than the sanctity of the doctor-patient confidentiality relationship.

The court wrote: “We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault. ... In this risk-infested society, we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal.”

However, the duty to warn a third party may not be as clear cut where there is no readily identifiable victim.²

Further, the law is unsettled regarding a physician’s duty to report negligent conduct that poses a significant risk to public safety, e.g., where a patient insists on operating a vehicle against medical advice. Obviously, the doctor should spare no effort in trying to persuade such a patient to discontinue driving. When this fails, however, and depending on the circumstances, the physician should seriously consider breaching patent confidentiality by notifying the driving licensing bureau.

This opinion is in accord with the AMA Code of Medical Ethics: “Physicians should use their best judgment when determining when to report impairments that could limit a patient’s ability to drive safely. In situations where clear evidence of substantial driving impairment implies a strong threat to patient and public safety, and where the physician’s advice to discontinue driving privileges is ignored, it is desirable and ethical to notify the department of motor vehicles.”³

What about informing the patient’s employer if the risk of harm arises in the work setting?

The duty to report is clearer if the physician is a company doctor specifically charged with the task of determining whether an employee is fit for work. However, a patient’s personal physician may be a different matter, because he or she does not share the same contractual obligation as a company employed doctor.

Still, the circumstances may well dictate the need to report. In the hypothetical scenario posed above, the patient is refusing to heed the advice of physician and spouse, and given the history of a DUI, can be said to be placing innocent children and others at risk. The physician may need to go beyond warning the patient and wife, even though revealing a patient’s diagnosis violates the principle of confidentiality.

Arguably controversial, the physician’s justification is that there is a higher ethical and legal duty to report, as the risk of harm to the school children is both unreasonable and foreseeable, outweighing other considerations.

The same analysis concerning reporting may be applied in uncooperative patients with certain medical diagnoses (e.g., uncontrolled epilepsy, serious mental illness, or disabling cardiac or cerebrovascular disease, to name a few) and in those taking mind-altering prescription medications or illicit drugs.

A key inquiry is whether the patient’s work activity is potentially hazardous, as in those who are entrusted with public transportation, e.g., bus drivers, pilots and train/ship engineers, or those who operate heavy machinery.

The most familiar example of the failure to warn (as opposed to report) is of course in informed consent litigation, where the physician is faulted for not warning the patient of the risk of harm and the patient in fact suffers that harm. It is framed as the failure to disclose material risks. The California Supreme Court has stated that “material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject the recommended medical procedure”; that “a (material) fact must also be one which is not commonly appreciated”; and the scope of disclosure may be expanded in patients with “unique concerns or lack of familiarity with medical procedures.”⁴ There is, however, no legal requirement to deliver a “mini-course in medical science.”⁵

Another situation where there may have been a failure to warn is in medical products liability. Here, the plaintiff alleges that the defective product has caused injuries because the manufacturer has issued no prior warning to the health care provider or end user. A prime example is the current Lipitor and diabetes class action lawsuit against Pfizer.

In failing to warn a patient, a doctor may incur liability not only for injuries to the patient but also to nonpatient third parties.

In a 2002 Hawaii case, a car suddenly veered across five lanes of traffic, striking an 11-year-old girl and crushing her against a cement planter.⁶ The driver alleged that the prescription medication prazosin caused him to develop hypotension and lose control of the car, and that the treating physician was negligent in failing to warn of this potential side effect.

The Hawaii Supreme Court held that physicians have a duty to their patients to warn of potential adverse effects, and this responsibility should therefore extend to third parties.

Court decisions elsewhere have also found liability where, for public policy reasons, a “special relationship” is deemed to exist between the doctor and the injured third party. Foreseeability is one important factor in construing its existence, notwithstanding the absence of the traditional doctor-patient relationship.

References

1. Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976).

2. Furr v. Spring Grove State Hospital, 454 A.2d 414 (Md. 1983).

3. AMA Code of Medical Ethics [2.24 (3), 2012-2013 ed.].

4. Truman v. Thomas, 27 Cal.3d 285 (1980).

5. Cobbs v. Grant, 8 Cal.3d 229 (1972).

6. McKenzie v. Hawaii Permanente Medical Group, 47 P.3d 1209 (Haw. 2002).

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii. He currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. For additional information, readers may contact the author at [email protected].

Question: A patient who is a school bus driver is also an alcoholic, but he continues to drive despite his physician’s warning against drinking and driving. He already has had one prior driving under the influence (DUI) conviction. Fearing a potential vehicular accident with injuries to the schoolchildren, the physician, with permission, informed the patient’s wife of the situation; but that did not make a difference.

Under the circumstances, which of the following is best?

A. The physician has discharged his professional duty by warning the patient and informing his wife.

B. It is unethical for the physician to report this to the employer, because it violates the principle of confidentiality.

C. The physician may have an ethical and legal duty to report, because the risk of harm to the school children is foreseeable and outweighs other considerations.

D. A and B.

E. A and C.

Answer: C. The issue in this hypothetical revolves around the failure to warn and report when a doctor has determined that his or her patient poses a significant societal risk. It places the health care provider in a dilemma, because it pits patient confidentiality against the public interest in safety.

There does not appear to be an appellate case precisely on point, but the well known case of Tarasoff¹ offers useful insight.

In Tarasoff, a California court imposed a legal duty on a college psychologist to warn an intended victim of harm, even though that meant breaching confidentiality in a professional relationship. A jilted patient had confided in the university psychologist his intention to kill his ex-girlfriend. The information, though shared with campus security, was not released to the intended victim, the girlfriend, whom the patient stabbed to death 2 months later.

The California court found the psychologist and the University of California (as the psychologist’s employer) liable, reasoning that the protection of public safety was more important than the sanctity of the doctor-patient confidentiality relationship.

The court wrote: “We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault. ... In this risk-infested society, we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal.”

However, the duty to warn a third party may not be as clear cut where there is no readily identifiable victim.²

Further, the law is unsettled regarding a physician’s duty to report negligent conduct that poses a significant risk to public safety, e.g., where a patient insists on operating a vehicle against medical advice. Obviously, the doctor should spare no effort in trying to persuade such a patient to discontinue driving. When this fails, however, and depending on the circumstances, the physician should seriously consider breaching patent confidentiality by notifying the driving licensing bureau.

This opinion is in accord with the AMA Code of Medical Ethics: “Physicians should use their best judgment when determining when to report impairments that could limit a patient’s ability to drive safely. In situations where clear evidence of substantial driving impairment implies a strong threat to patient and public safety, and where the physician’s advice to discontinue driving privileges is ignored, it is desirable and ethical to notify the department of motor vehicles.”³

What about informing the patient’s employer if the risk of harm arises in the work setting?

The duty to report is clearer if the physician is a company doctor specifically charged with the task of determining whether an employee is fit for work. However, a patient’s personal physician may be a different matter, because he or she does not share the same contractual obligation as a company employed doctor.

Still, the circumstances may well dictate the need to report. In the hypothetical scenario posed above, the patient is refusing to heed the advice of physician and spouse, and given the history of a DUI, can be said to be placing innocent children and others at risk. The physician may need to go beyond warning the patient and wife, even though revealing a patient’s diagnosis violates the principle of confidentiality.

Arguably controversial, the physician’s justification is that there is a higher ethical and legal duty to report, as the risk of harm to the school children is both unreasonable and foreseeable, outweighing other considerations.

The same analysis concerning reporting may be applied in uncooperative patients with certain medical diagnoses (e.g., uncontrolled epilepsy, serious mental illness, or disabling cardiac or cerebrovascular disease, to name a few) and in those taking mind-altering prescription medications or illicit drugs.

A key inquiry is whether the patient’s work activity is potentially hazardous, as in those who are entrusted with public transportation, e.g., bus drivers, pilots and train/ship engineers, or those who operate heavy machinery.

The most familiar example of the failure to warn (as opposed to report) is of course in informed consent litigation, where the physician is faulted for not warning the patient of the risk of harm and the patient in fact suffers that harm. It is framed as the failure to disclose material risks. The California Supreme Court has stated that “material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject the recommended medical procedure”; that “a (material) fact must also be one which is not commonly appreciated”; and the scope of disclosure may be expanded in patients with “unique concerns or lack of familiarity with medical procedures.”⁴ There is, however, no legal requirement to deliver a “mini-course in medical science.”⁵

Another situation where there may have been a failure to warn is in medical products liability. Here, the plaintiff alleges that the defective product has caused injuries because the manufacturer has issued no prior warning to the health care provider or end user. A prime example is the current Lipitor and diabetes class action lawsuit against Pfizer.

In failing to warn a patient, a doctor may incur liability not only for injuries to the patient but also to nonpatient third parties.

In a 2002 Hawaii case, a car suddenly veered across five lanes of traffic, striking an 11-year-old girl and crushing her against a cement planter.⁶ The driver alleged that the prescription medication prazosin caused him to develop hypotension and lose control of the car, and that the treating physician was negligent in failing to warn of this potential side effect.

The Hawaii Supreme Court held that physicians have a duty to their patients to warn of potential adverse effects, and this responsibility should therefore extend to third parties.

Court decisions elsewhere have also found liability where, for public policy reasons, a “special relationship” is deemed to exist between the doctor and the injured third party. Foreseeability is one important factor in construing its existence, notwithstanding the absence of the traditional doctor-patient relationship.

References

1. Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976).

2. Furr v. Spring Grove State Hospital, 454 A.2d 414 (Md. 1983).

3. AMA Code of Medical Ethics [2.24 (3), 2012-2013 ed.].

4. Truman v. Thomas, 27 Cal.3d 285 (1980).

5. Cobbs v. Grant, 8 Cal.3d 229 (1972).

6. McKenzie v. Hawaii Permanente Medical Group, 47 P.3d 1209 (Haw. 2002).

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii. He currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. For additional information, readers may contact the author at [email protected].

Question: A patient who is a school bus driver is also an alcoholic, but he continues to drive despite his physician’s warning against drinking and driving. He already has had one prior driving under the influence (DUI) conviction. Fearing a potential vehicular accident with injuries to the schoolchildren, the physician, with permission, informed the patient’s wife of the situation; but that did not make a difference.

Under the circumstances, which of the following is best?

A. The physician has discharged his professional duty by warning the patient and informing his wife.

B. It is unethical for the physician to report this to the employer, because it violates the principle of confidentiality.

C. The physician may have an ethical and legal duty to report, because the risk of harm to the school children is foreseeable and outweighs other considerations.

D. A and B.

E. A and C.

Answer: C. The issue in this hypothetical revolves around the failure to warn and report when a doctor has determined that his or her patient poses a significant societal risk. It places the health care provider in a dilemma, because it pits patient confidentiality against the public interest in safety.

There does not appear to be an appellate case precisely on point, but the well known case of Tarasoff¹ offers useful insight.

In Tarasoff, a California court imposed a legal duty on a college psychologist to warn an intended victim of harm, even though that meant breaching confidentiality in a professional relationship. A jilted patient had confided in the university psychologist his intention to kill his ex-girlfriend. The information, though shared with campus security, was not released to the intended victim, the girlfriend, whom the patient stabbed to death 2 months later.

The California court found the psychologist and the University of California (as the psychologist’s employer) liable, reasoning that the protection of public safety was more important than the sanctity of the doctor-patient confidentiality relationship.

The court wrote: “We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault. ... In this risk-infested society, we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal.”

However, the duty to warn a third party may not be as clear cut where there is no readily identifiable victim.²

Further, the law is unsettled regarding a physician’s duty to report negligent conduct that poses a significant risk to public safety, e.g., where a patient insists on operating a vehicle against medical advice. Obviously, the doctor should spare no effort in trying to persuade such a patient to discontinue driving. When this fails, however, and depending on the circumstances, the physician should seriously consider breaching patent confidentiality by notifying the driving licensing bureau.

This opinion is in accord with the AMA Code of Medical Ethics: “Physicians should use their best judgment when determining when to report impairments that could limit a patient’s ability to drive safely. In situations where clear evidence of substantial driving impairment implies a strong threat to patient and public safety, and where the physician’s advice to discontinue driving privileges is ignored, it is desirable and ethical to notify the department of motor vehicles.”³

What about informing the patient’s employer if the risk of harm arises in the work setting?

The duty to report is clearer if the physician is a company doctor specifically charged with the task of determining whether an employee is fit for work. However, a patient’s personal physician may be a different matter, because he or she does not share the same contractual obligation as a company employed doctor.

Still, the circumstances may well dictate the need to report. In the hypothetical scenario posed above, the patient is refusing to heed the advice of physician and spouse, and given the history of a DUI, can be said to be placing innocent children and others at risk. The physician may need to go beyond warning the patient and wife, even though revealing a patient’s diagnosis violates the principle of confidentiality.

Arguably controversial, the physician’s justification is that there is a higher ethical and legal duty to report, as the risk of harm to the school children is both unreasonable and foreseeable, outweighing other considerations.

The same analysis concerning reporting may be applied in uncooperative patients with certain medical diagnoses (e.g., uncontrolled epilepsy, serious mental illness, or disabling cardiac or cerebrovascular disease, to name a few) and in those taking mind-altering prescription medications or illicit drugs.

A key inquiry is whether the patient’s work activity is potentially hazardous, as in those who are entrusted with public transportation, e.g., bus drivers, pilots and train/ship engineers, or those who operate heavy machinery.

The most familiar example of the failure to warn (as opposed to report) is of course in informed consent litigation, where the physician is faulted for not warning the patient of the risk of harm and the patient in fact suffers that harm. It is framed as the failure to disclose material risks. The California Supreme Court has stated that “material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject the recommended medical procedure”; that “a (material) fact must also be one which is not commonly appreciated”; and the scope of disclosure may be expanded in patients with “unique concerns or lack of familiarity with medical procedures.”⁴ There is, however, no legal requirement to deliver a “mini-course in medical science.”⁵

Another situation where there may have been a failure to warn is in medical products liability. Here, the plaintiff alleges that the defective product has caused injuries because the manufacturer has issued no prior warning to the health care provider or end user. A prime example is the current Lipitor and diabetes class action lawsuit against Pfizer.

In failing to warn a patient, a doctor may incur liability not only for injuries to the patient but also to nonpatient third parties.

In a 2002 Hawaii case, a car suddenly veered across five lanes of traffic, striking an 11-year-old girl and crushing her against a cement planter.⁶ The driver alleged that the prescription medication prazosin caused him to develop hypotension and lose control of the car, and that the treating physician was negligent in failing to warn of this potential side effect.

The Hawaii Supreme Court held that physicians have a duty to their patients to warn of potential adverse effects, and this responsibility should therefore extend to third parties.

Court decisions elsewhere have also found liability where, for public policy reasons, a “special relationship” is deemed to exist between the doctor and the injured third party. Foreseeability is one important factor in construing its existence, notwithstanding the absence of the traditional doctor-patient relationship.

References

1. Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976).

2. Furr v. Spring Grove State Hospital, 454 A.2d 414 (Md. 1983).

3. AMA Code of Medical Ethics [2.24 (3), 2012-2013 ed.].

4. Truman v. Thomas, 27 Cal.3d 285 (1980).

5. Cobbs v. Grant, 8 Cal.3d 229 (1972).

6. McKenzie v. Hawaii Permanente Medical Group, 47 P.3d 1209 (Haw. 2002).

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii. He currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. For additional information, readers may contact the author at [email protected].

Question: Choose the single best answer to complete the statement, “A class-action lawsuit ...”

A. Is a legal cause of action for a wrongful act perpetrated by a class of wrongdoers.

B. Requires prior certification by a judge before it can go forward.

C. Is appropriate where the claims of a few injured victims can be joined together against a common wrongdoer.

D. Fulfills twin criteria of numerosity and commonality.

E. Can only be filed where there are substantial monetary damages at issue.

Answer: B. A class-action lawsuit describes a legal cause of action where a representative plaintiff(s), known as the lead plaintiff, asserts claims on behalf of a large class of similarly injured members, who then give up their rights to pursue an individual lawsuit. Class-action suits are distinguished from the usual lawsuit, which characteristically affects only one or a few plaintiffs.

Four prerequisites govern an action before it can be deemed a class action: numerosity, commonality, typicality, and adequacy. These are words of art, with specific definitions.

Numerosity denotes a large class membership, usually exceeding 30-40, and sometimes numbering in the thousands, such that the usual joining together of a few injured plaintiffs is not practical. Commonality speaks to common questions of fact and law, typicality requires the claim(s) of the representative plaintiff to match that of the class members, and adequacy demands that the representation of the class members be adequate.

These rules, as well as other important technicalities governing class action, are enumerated in the Federal Rules of Civil Procedure under Rule 23.¹²Wal-Mart Stores, Inc. v. Dukes et al^., where Wal-Mart was alleged to have violated Title VII of the Civil Rights Act of 1964 by having disparate wages and promotion reflecting gender discrimination.³ The plaintiffs sought an injunction against the alleged practice, as well as monetary damages. An earlier ruling of the U.S. Court of Appeals for the Ninth Circuit gave the green light to this sprawling nationwide class action.

It had started out with Betty Dukes and five other women employees, but grew to more than 1.5 million female Wal-Mart employees. However, on appeal, the U.S. Supreme Court reversed, holding that the certification of the plaintiff class was not consistent with Rule 23(a), as the prerequisite of commonality was not fulfilled. The Supreme Court also disallowed the claim for monetary relief, as it was not incidental or secondary to the injunction sought.

Class-action suits are commonly encountered in mass torts, where a product or accident causes injury to numerous individuals. Other situations include environmental pollution, securities fraud, and improper employment practices.

A favorite target is in the health care industry, where manufacturers of drugs and medical devices face allegations that defective products have been allowed to enter the market, causing harm to end users.

An example is the silicon breast implant litigation of the 1990s. The Food and Drug Administration had placed breast implants in the category of medical products and learned that the Dow Corning Corporation, which manufactured the silicon implants, had withheld safety information. The FDA severely restricted the use of these implants, which predictably led to widespread litigation with billions of dollars of judgment awards and settlements.⁴⁵ and the FDA subsequently required the revision of the package insert of Lipitor and other statins to warn of this association. In 2013, a large Canadian study confirmed the increased incidence of new-onset diabetes in patients taking atorvastatin (hazard ratio, 1.22) or simvastatin.⁶

However, the outcome of the trial may turn on whether the clear health benefit of lowering serum cholesterol outweighs any purported safety concern.

A fast-growing trend is the filing of class-action suits against nursing homes for providing inadequate care. This is not unexpected, because large numbers of nursing home residents have a common concern over any breach of safety, hygiene, or other statutorily mandated standards of nursing home care. This important topic will be taken up in a subsequent column.

References

1. Available at www.classactionlitigation.com/rule23.html.

2. Mullenix LS. Ending class actions as we know them: rethinking the American class action. Emory Law J. 2014;64:399-449.

3. Wal-Mart Stores, Inc. v. Dukes et al.131 S. Ct. 2541 (2011).

4. Snyder JW. Silicon breast implants. Can emerging medical, legal and scientific concepts be reconciled? J. Leg. Med. 1997;18:133-220.

5. Sattar N, et al. Statins and risk of incident diabetes: a collaborative meta-analysis of randomised statin trials. Lancet 2010;375:735-42.

6. Carter AC, et al. Risk of incident diabetes among patients treated with statins: population based study. BMJ 2013;346:f2610.

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: Choose the single best answer to complete the statement, “A class-action lawsuit ...”

A. Is a legal cause of action for a wrongful act perpetrated by a class of wrongdoers.

B. Requires prior certification by a judge before it can go forward.

C. Is appropriate where the claims of a few injured victims can be joined together against a common wrongdoer.

D. Fulfills twin criteria of numerosity and commonality.

E. Can only be filed where there are substantial monetary damages at issue.

Answer: B. A class-action lawsuit describes a legal cause of action where a representative plaintiff(s), known as the lead plaintiff, asserts claims on behalf of a large class of similarly injured members, who then give up their rights to pursue an individual lawsuit. Class-action suits are distinguished from the usual lawsuit, which characteristically affects only one or a few plaintiffs.

Four prerequisites govern an action before it can be deemed a class action: numerosity, commonality, typicality, and adequacy. These are words of art, with specific definitions.

Numerosity denotes a large class membership, usually exceeding 30-40, and sometimes numbering in the thousands, such that the usual joining together of a few injured plaintiffs is not practical. Commonality speaks to common questions of fact and law, typicality requires the claim(s) of the representative plaintiff to match that of the class members, and adequacy demands that the representation of the class members be adequate.

These rules, as well as other important technicalities governing class action, are enumerated in the Federal Rules of Civil Procedure under Rule 23.¹²Wal-Mart Stores, Inc. v. Dukes et al^., where Wal-Mart was alleged to have violated Title VII of the Civil Rights Act of 1964 by having disparate wages and promotion reflecting gender discrimination.³ The plaintiffs sought an injunction against the alleged practice, as well as monetary damages. An earlier ruling of the U.S. Court of Appeals for the Ninth Circuit gave the green light to this sprawling nationwide class action.

It had started out with Betty Dukes and five other women employees, but grew to more than 1.5 million female Wal-Mart employees. However, on appeal, the U.S. Supreme Court reversed, holding that the certification of the plaintiff class was not consistent with Rule 23(a), as the prerequisite of commonality was not fulfilled. The Supreme Court also disallowed the claim for monetary relief, as it was not incidental or secondary to the injunction sought.

Class-action suits are commonly encountered in mass torts, where a product or accident causes injury to numerous individuals. Other situations include environmental pollution, securities fraud, and improper employment practices.

A favorite target is in the health care industry, where manufacturers of drugs and medical devices face allegations that defective products have been allowed to enter the market, causing harm to end users.

An example is the silicon breast implant litigation of the 1990s. The Food and Drug Administration had placed breast implants in the category of medical products and learned that the Dow Corning Corporation, which manufactured the silicon implants, had withheld safety information. The FDA severely restricted the use of these implants, which predictably led to widespread litigation with billions of dollars of judgment awards and settlements.⁴⁵ and the FDA subsequently required the revision of the package insert of Lipitor and other statins to warn of this association. In 2013, a large Canadian study confirmed the increased incidence of new-onset diabetes in patients taking atorvastatin (hazard ratio, 1.22) or simvastatin.⁶

However, the outcome of the trial may turn on whether the clear health benefit of lowering serum cholesterol outweighs any purported safety concern.

A fast-growing trend is the filing of class-action suits against nursing homes for providing inadequate care. This is not unexpected, because large numbers of nursing home residents have a common concern over any breach of safety, hygiene, or other statutorily mandated standards of nursing home care. This important topic will be taken up in a subsequent column.

References

1. Available at www.classactionlitigation.com/rule23.html.

2. Mullenix LS. Ending class actions as we know them: rethinking the American class action. Emory Law J. 2014;64:399-449.

3. Wal-Mart Stores, Inc. v. Dukes et al.131 S. Ct. 2541 (2011).

4. Snyder JW. Silicon breast implants. Can emerging medical, legal and scientific concepts be reconciled? J. Leg. Med. 1997;18:133-220.

5. Sattar N, et al. Statins and risk of incident diabetes: a collaborative meta-analysis of randomised statin trials. Lancet 2010;375:735-42.

6. Carter AC, et al. Risk of incident diabetes among patients treated with statins: population based study. BMJ 2013;346:f2610.

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: Choose the single best answer to complete the statement, “A class-action lawsuit ...”

A. Is a legal cause of action for a wrongful act perpetrated by a class of wrongdoers.

B. Requires prior certification by a judge before it can go forward.

C. Is appropriate where the claims of a few injured victims can be joined together against a common wrongdoer.

D. Fulfills twin criteria of numerosity and commonality.

E. Can only be filed where there are substantial monetary damages at issue.

Answer: B. A class-action lawsuit describes a legal cause of action where a representative plaintiff(s), known as the lead plaintiff, asserts claims on behalf of a large class of similarly injured members, who then give up their rights to pursue an individual lawsuit. Class-action suits are distinguished from the usual lawsuit, which characteristically affects only one or a few plaintiffs.

Four prerequisites govern an action before it can be deemed a class action: numerosity, commonality, typicality, and adequacy. These are words of art, with specific definitions.

Numerosity denotes a large class membership, usually exceeding 30-40, and sometimes numbering in the thousands, such that the usual joining together of a few injured plaintiffs is not practical. Commonality speaks to common questions of fact and law, typicality requires the claim(s) of the representative plaintiff to match that of the class members, and adequacy demands that the representation of the class members be adequate.

These rules, as well as other important technicalities governing class action, are enumerated in the Federal Rules of Civil Procedure under Rule 23.¹²Wal-Mart Stores, Inc. v. Dukes et al^., where Wal-Mart was alleged to have violated Title VII of the Civil Rights Act of 1964 by having disparate wages and promotion reflecting gender discrimination.³ The plaintiffs sought an injunction against the alleged practice, as well as monetary damages. An earlier ruling of the U.S. Court of Appeals for the Ninth Circuit gave the green light to this sprawling nationwide class action.

It had started out with Betty Dukes and five other women employees, but grew to more than 1.5 million female Wal-Mart employees. However, on appeal, the U.S. Supreme Court reversed, holding that the certification of the plaintiff class was not consistent with Rule 23(a), as the prerequisite of commonality was not fulfilled. The Supreme Court also disallowed the claim for monetary relief, as it was not incidental or secondary to the injunction sought.

Class-action suits are commonly encountered in mass torts, where a product or accident causes injury to numerous individuals. Other situations include environmental pollution, securities fraud, and improper employment practices.

A favorite target is in the health care industry, where manufacturers of drugs and medical devices face allegations that defective products have been allowed to enter the market, causing harm to end users.

An example is the silicon breast implant litigation of the 1990s. The Food and Drug Administration had placed breast implants in the category of medical products and learned that the Dow Corning Corporation, which manufactured the silicon implants, had withheld safety information. The FDA severely restricted the use of these implants, which predictably led to widespread litigation with billions of dollars of judgment awards and settlements.⁴⁵ and the FDA subsequently required the revision of the package insert of Lipitor and other statins to warn of this association. In 2013, a large Canadian study confirmed the increased incidence of new-onset diabetes in patients taking atorvastatin (hazard ratio, 1.22) or simvastatin.⁶

However, the outcome of the trial may turn on whether the clear health benefit of lowering serum cholesterol outweighs any purported safety concern.

A fast-growing trend is the filing of class-action suits against nursing homes for providing inadequate care. This is not unexpected, because large numbers of nursing home residents have a common concern over any breach of safety, hygiene, or other statutorily mandated standards of nursing home care. This important topic will be taken up in a subsequent column.

References

1. Available at www.classactionlitigation.com/rule23.html.

2. Mullenix LS. Ending class actions as we know them: rethinking the American class action. Emory Law J. 2014;64:399-449.

3. Wal-Mart Stores, Inc. v. Dukes et al.131 S. Ct. 2541 (2011).

4. Snyder JW. Silicon breast implants. Can emerging medical, legal and scientific concepts be reconciled? J. Leg. Med. 1997;18:133-220.

5. Sattar N, et al. Statins and risk of incident diabetes: a collaborative meta-analysis of randomised statin trials. Lancet 2010;375:735-42.

6. Carter AC, et al. Risk of incident diabetes among patients treated with statins: population based study. BMJ 2013;346:f2610.

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Failure to recognize impending MI has tragic consequences

A 55-YEAR-OLD WOMAN WENT TO HER MEDICAL CLINIC because she had heartburn and bilateral arm pain with numbness and tingling in her forearms. She said she’d had intermittent arm pain over the previous 7 to 10 days. A physician’s assistant diagnosed gastroesophageal reflux disease, gave the patient an antacid medication, and instructed her to return in 2 to 3 weeks. The patient came back to the clinic 10 days later with increased heartburn and continued arm pain with tingling. Because no clinicians were available to see her at that time, a prescription for ranitidine was called in and the patient was sent home. That evening, the patient died of a myocardial infarction (MI).

PLAINTIFF’S CLAIM There were specific, objective signs of an impending MI that were not recognized.

The patient should have been seen by a medical provider on the day of her death or referred to an emergency department.

THE DEFENSE No information about the defense is available.

VERDICT $275,000 California settlement.

COMMENT There was clearly an opportunity to make the correct diagnosis for this woman, especially when she returned a second time. The one lesson I have learned from reviewing malpractice cases for 15 years is that if a patient returns unimproved, you must up the ante with the evaluation. Start all over again and think through the entire history very carefully; you are likely to find a clue to the correct diagnosis.

Pulmonary embolism mistaken for respiratory infection

A 40-YEAR-OLD MAN SOUGHT TREATMENT FOR SYMPTOMS OF A COLD. He also complained of shortness of breath, dizziness, and pain in his left calf. His family physician (FP) treated him for a respiratory infection. Three days later, the patient returned to the office with continued shortness of breath. The FP scheduled a cardiac work-up. Two days before the work-up, the patient died from a pulmonary embolism (PE).

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

If a patient returns unimproved, start the evaluation over again and think through the entire history; you’ll likely find a clue to the correct diagnosis.

THE DEFENSE No information about the defense is available.

VERDICT $1.1 million Virginia settlement.

COMMENT PE has clearly unseated syphilis as “The Great Masquerader.” We cannot tell from this short synopsis how significant the patient’s calf pain was and whether or not there were any physical findings of deep vein thrombosis. However, when the patient returned 3 days later with increasing shortness of breath, PE should have been toward the top of the differential diagnosis.

Back spasms—or something far more serious?

A 47-YEAR-OLD WOMAN WENT TO THE EMERGENCY DEPARTMENT (ED) seeking treatment for severe back and abdominal pain. The patient had previously undergone gastric bypass surgery. The ED physician diagnosed back spasms, but admitted her to the hospital for observation. The next day, the patient died from a bowel obstruction.

PLAINTIFF'S CLAIM The ED physician failed to order testing and consult with a specialist to diagnose bowel obstruction, which is a known complication of gastric bypass surgery.

THE DEFENSE No information about the defense is available.

VERDICT $2.4 million Illinois verdict.

COMMENT Bowel obstruction with back pain only? And dead the next day from bowel obstruction? I can only presume the history was inadequate, which led to a failure to do an abdominal exam.

Failure to recognize impending MI has tragic consequences

A 55-YEAR-OLD WOMAN WENT TO HER MEDICAL CLINIC because she had heartburn and bilateral arm pain with numbness and tingling in her forearms. She said she’d had intermittent arm pain over the previous 7 to 10 days. A physician’s assistant diagnosed gastroesophageal reflux disease, gave the patient an antacid medication, and instructed her to return in 2 to 3 weeks. The patient came back to the clinic 10 days later with increased heartburn and continued arm pain with tingling. Because no clinicians were available to see her at that time, a prescription for ranitidine was called in and the patient was sent home. That evening, the patient died of a myocardial infarction (MI).

PLAINTIFF’S CLAIM There were specific, objective signs of an impending MI that were not recognized.

The patient should have been seen by a medical provider on the day of her death or referred to an emergency department.

THE DEFENSE No information about the defense is available.

VERDICT $275,000 California settlement.

COMMENT There was clearly an opportunity to make the correct diagnosis for this woman, especially when she returned a second time. The one lesson I have learned from reviewing malpractice cases for 15 years is that if a patient returns unimproved, you must up the ante with the evaluation. Start all over again and think through the entire history very carefully; you are likely to find a clue to the correct diagnosis.

Pulmonary embolism mistaken for respiratory infection

A 40-YEAR-OLD MAN SOUGHT TREATMENT FOR SYMPTOMS OF A COLD. He also complained of shortness of breath, dizziness, and pain in his left calf. His family physician (FP) treated him for a respiratory infection. Three days later, the patient returned to the office with continued shortness of breath. The FP scheduled a cardiac work-up. Two days before the work-up, the patient died from a pulmonary embolism (PE).

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

If a patient returns unimproved, start the evaluation over again and think through the entire history; you’ll likely find a clue to the correct diagnosis.

THE DEFENSE No information about the defense is available.

VERDICT $1.1 million Virginia settlement.

COMMENT PE has clearly unseated syphilis as “The Great Masquerader.” We cannot tell from this short synopsis how significant the patient’s calf pain was and whether or not there were any physical findings of deep vein thrombosis. However, when the patient returned 3 days later with increasing shortness of breath, PE should have been toward the top of the differential diagnosis.

Back spasms—or something far more serious?

A 47-YEAR-OLD WOMAN WENT TO THE EMERGENCY DEPARTMENT (ED) seeking treatment for severe back and abdominal pain. The patient had previously undergone gastric bypass surgery. The ED physician diagnosed back spasms, but admitted her to the hospital for observation. The next day, the patient died from a bowel obstruction.

PLAINTIFF'S CLAIM The ED physician failed to order testing and consult with a specialist to diagnose bowel obstruction, which is a known complication of gastric bypass surgery.

THE DEFENSE No information about the defense is available.

VERDICT $2.4 million Illinois verdict.

COMMENT Bowel obstruction with back pain only? And dead the next day from bowel obstruction? I can only presume the history was inadequate, which led to a failure to do an abdominal exam.

Failure to recognize impending MI has tragic consequences

A 55-YEAR-OLD WOMAN WENT TO HER MEDICAL CLINIC because she had heartburn and bilateral arm pain with numbness and tingling in her forearms. She said she’d had intermittent arm pain over the previous 7 to 10 days. A physician’s assistant diagnosed gastroesophageal reflux disease, gave the patient an antacid medication, and instructed her to return in 2 to 3 weeks. The patient came back to the clinic 10 days later with increased heartburn and continued arm pain with tingling. Because no clinicians were available to see her at that time, a prescription for ranitidine was called in and the patient was sent home. That evening, the patient died of a myocardial infarction (MI).

PLAINTIFF’S CLAIM There were specific, objective signs of an impending MI that were not recognized.

The patient should have been seen by a medical provider on the day of her death or referred to an emergency department.

THE DEFENSE No information about the defense is available.

VERDICT $275,000 California settlement.

COMMENT There was clearly an opportunity to make the correct diagnosis for this woman, especially when she returned a second time. The one lesson I have learned from reviewing malpractice cases for 15 years is that if a patient returns unimproved, you must up the ante with the evaluation. Start all over again and think through the entire history very carefully; you are likely to find a clue to the correct diagnosis.

Pulmonary embolism mistaken for respiratory infection

A 40-YEAR-OLD MAN SOUGHT TREATMENT FOR SYMPTOMS OF A COLD. He also complained of shortness of breath, dizziness, and pain in his left calf. His family physician (FP) treated him for a respiratory infection. Three days later, the patient returned to the office with continued shortness of breath. The FP scheduled a cardiac work-up. Two days before the work-up, the patient died from a pulmonary embolism (PE).

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

If a patient returns unimproved, start the evaluation over again and think through the entire history; you’ll likely find a clue to the correct diagnosis.

THE DEFENSE No information about the defense is available.

VERDICT $1.1 million Virginia settlement.

COMMENT PE has clearly unseated syphilis as “The Great Masquerader.” We cannot tell from this short synopsis how significant the patient’s calf pain was and whether or not there were any physical findings of deep vein thrombosis. However, when the patient returned 3 days later with increasing shortness of breath, PE should have been toward the top of the differential diagnosis.

Back spasms—or something far more serious?

A 47-YEAR-OLD WOMAN WENT TO THE EMERGENCY DEPARTMENT (ED) seeking treatment for severe back and abdominal pain. The patient had previously undergone gastric bypass surgery. The ED physician diagnosed back spasms, but admitted her to the hospital for observation. The next day, the patient died from a bowel obstruction.

PLAINTIFF'S CLAIM The ED physician failed to order testing and consult with a specialist to diagnose bowel obstruction, which is a known complication of gastric bypass surgery.

THE DEFENSE No information about the defense is available.

VERDICT $2.4 million Illinois verdict.

COMMENT Bowel obstruction with back pain only? And dead the next day from bowel obstruction? I can only presume the history was inadequate, which led to a failure to do an abdominal exam.

Carbon Monoxide Poisoning

A 72-year-old man was brought to the ED by paramedics with inability to move his left leg and difficulty speaking. The patient had been heating his home with a generator placed inside the house during an ice storm, and paramedics reported a strong smell of gas inside the house.

The patient was unable to describe the time of onset of his symptoms. He complained of headache, slurred speech, and inability to move his left leg. He also said he felt the urge to urinate, but was unable to do so. He denied chest pain or shortness of breath. His medical history was significant only for hypertension, which was controlled with hydrochlorothiazide and lisinopril. He admitted to smoking a few cigarettes daily, but denied any alcohol use.

On physical examination, the patient’s vital signs were: blood pressure (BP) 162/98 mm Hg; heart rate (HR), 110 beats/minute; respiratory rate (RR), 20 breaths/minute; and temperature (T), 98.6˚F. The patient had 100% oxygen (O₂) saturation on 4L O₂ via nasal cannula. The head, eyes, ears, nose, and throat examination was normal. There was no facial droop; his speech was slurred, but he was easily understandable. The cardiopulmonary examination revealed tachycardia without murmurs, rubs, or gallop; the lungs were clear to auscultation bilaterally. The neurological examination revealed 5/5 motor strength in the upper extremities and symmetrical; there was no pronator drift. The left leg had 2/5 motor strength compared to 5/5 in the right lower extremity. There was also fullness and tenderness over his suprapubic region. 

The emergency physician (EP) ordered a complete blood count, basic metabolic profile, carboxyhemoglobin (COHb) test, electrocardiogram (ECG), portable chest X-ray (CXR), and a noncontrast computed tomography (CT) scan of the head. Since the history and physical examination suggested urinary retention, a Foley catheter was placed; a total of 1,200 cc of clear urine was obtained, after which the patient expressed a feeling of relief.

The patient’s COHb level was 8.5%. The portable CXR and CT scan of the head were both reported as normal by the radiologist. Likewise, the results of the rest of the laboratory evaluation were normal. The ECG revealed sinus tachycardia without evidence of strain or injury.

The EP diagnosed an acute cerebrovascular accident (CVA) and admitted the patient to the hospital. He did not feel that carbon monoxide (CO) contributed to the event given the low level in a cigarette smoker. After an uneventful hospital stay, the patient was transferred to a physical rehabilitation unit. He was ultimately discharged with a neurogenic bladder and weak left leg.

The patient sued the EP for negligence in the failure to diagnose CO poisoning and prompt initiation of 100% O₂ therapy. The EP argued that CO poisoning had been properly ruled out and that the diagnosis of CVA was correct. The defense also claimed that even if the patient had suffered CO poisoning, the length of the exposure would have led to the same outcome. A defense verdict was returned.

Discussion

Carbon monoxide poisoning is one of the leading causes of poisoning morbidity and mortality in the United States. This is in part due to the fact that CO is a colorless, odorless, and tasteless gas. The peak incidence for CO poisoning is in the fall and winter, when people are more likely to use space heaters, wood burning stoves, or portable generators inside without adequate ventilation. 

The clinical presentation of CO poisoning can range from mild (eg, headache, flu-like symptoms) to devastating (eg, coma, death). The central nervous system is the organ system that is most sensitive to CO poisoning. Symptoms can range from a dull frontal headache, dizziness, and ataxia, to syncope, seizures, focal neurological deficit, and coma. In fact, the most serious complication of CO poisoning may be persistent or delayed neurological or neurocognitive sequelae, which can occur in up to 50% of patients with symptomatic acute poisoning.¹  Unfortunately, COHb levels and symptoms do not always correlate well. In fact, particular COHb levels are not predictive of symptoms or outcome.¹

The treatment for CO poisoning consists of administering 100% O₂ as soon as the diagnosis is considered. If 100% O₂ is administered, the half-life of COHb can be reduced from 5 hours (room air) to approximately 1 hour.¹ While some argue that treatment with hyperbaric O₂ (HBO) therapy should be considered standard of care, it has not yet been determined which patient population benefits from HBO therapy; moreover, there is currently no established optimum timing of therapy. Regardless, the jury came to the correct decision in this case as it is impossible to determine, with any degree of medical certainty, if the patient’s neurological deficits were due to the natural course of an ischemic stroke, or if CO contributed to or was the sole cause of the CVA.

Death in the Emergency Department

A 43-year-old man presented to the ED with the chief complaint of a lower lip laceration. The patient stated he had gotten into an altercation with his girlfriend just prior to arrival. She had punched the patient in the face with her fist, resulting in the lip laceration. The patient denied any loss of consciousness or other pain. He did, however, smell of alcohol and was emotionally labile, crying one moment and yelling the next.

The patient was instructed to remove all of his clothes, change into a hospital gown and give all of his belongings to hospital security. He removed his clothes, but refused to turn them over to security. This prompted a physical altercation between the patient and hospital security. Three hospital security guards wrestled the patient to the ground and placed him face down; one guard placed the patient in a choke hold while the other two guards sat on top of him. Within a few moments, the patient became unresponsive. He was placed immediately on a stretcher and intubated by the EP. After successful intubation and bagging with 100% O₂, the patient regained a palpable pulse, but remained unresponsive.

The patient was admitted to the intensive care unit, but never regained consciousness and died 5 days later. The cause of death was thought to be anoxic brain injury due to asphyxiation. The family of the patient sued the hospital and the EP for causing asphyxiation and death in this patient seeking medical care. The hospital denied responsibility for the death because the patient both instigated the altercation and had a preexisting heart condition. According to published reports, a $2.5 million settlement was reached.

Discussion

This unfortunate case did not involve the EP; all of the important events transpired prior to the EP’s initial interaction with the patient. There are not enough details to explain how this situation escalated so rapidly, or why hospital security felt this was the best way to subdue the patient.

Unfortunately, EPs are no strangers to agitated patients. Behavioral emergencies account for approximately 5% of all ED visits, and these usually involve some form of violence or agitation.¹  Every physician and nurse working in the ED must be prepared to deal with patients who have the potential to become violent. Clearly, training of all patient-care personnel to handle such patients in the ED is important to ensuring both staff and patient safety. Having the patient undress and change into a hospital gown is the correct first step. This allows for removal of real or potential weapons, and makes it much less likely for the patient to leave before his or her evaluation and management is complete. Doing this properly, however, is key. Providing the patient with a warm blanket or food, or just talking to him or her in a calm and reassuring voice, can often prevent escalation. Simply arguing with the patient rarely works, and often has the opposite desired effect.

If the situation continues to escalate, and it appears either physical or chemical restraint will be necessary, a “show of force” should be made. A restraint team consisting of at least five trained members should be assembled, with the EP acting as the team leader. The team should all enter the room at the same time, explain what will happen, and then move quickly.¹ The leader should move to the head of the bed and direct the team, while the remaining four members each take a limb. To preserve the physician-patient relationship, it is best if the EP is not actively involved in placing the physical restraints.

The choke hold should only be considered as a method of last resort. Many police departments in the country prohibit use of the choke hold because of complications such as those observed in this case. The use of choke holds became a topic of intense debate this summer with the death of Eric Garner in Staten Island, New York; it was thought that his pre-existing conditions of obesity, asthma, and heart disease were all aggravated by the choke hold. Although obese patients are often at a higher risk for complications due to pre-existing issues with adequate oxygenation, it is unclear whether the patient in this case was obese.

An alternative strategy in handling an agitated patient would be the use of a taser by trained security personnel. In one study, 99.75% of tasered patients had no significant injury as a result of the device.² In 2009, the American Medical Association found that tasers, “when used appropriately, can save lives during interventions that would have otherwise involved the use of deadly force.” While the safety of patients and the ED staff (nurses, physicians, and technicians) is paramount, the clinician should always adhere to the principle of “primum non nocere”—“first, do no harm.”

Carbon Monoxide Poisoning

A 72-year-old man was brought to the ED by paramedics with inability to move his left leg and difficulty speaking. The patient had been heating his home with a generator placed inside the house during an ice storm, and paramedics reported a strong smell of gas inside the house.

The patient was unable to describe the time of onset of his symptoms. He complained of headache, slurred speech, and inability to move his left leg. He also said he felt the urge to urinate, but was unable to do so. He denied chest pain or shortness of breath. His medical history was significant only for hypertension, which was controlled with hydrochlorothiazide and lisinopril. He admitted to smoking a few cigarettes daily, but denied any alcohol use.

On physical examination, the patient’s vital signs were: blood pressure (BP) 162/98 mm Hg; heart rate (HR), 110 beats/minute; respiratory rate (RR), 20 breaths/minute; and temperature (T), 98.6˚F. The patient had 100% oxygen (O₂) saturation on 4L O₂ via nasal cannula. The head, eyes, ears, nose, and throat examination was normal. There was no facial droop; his speech was slurred, but he was easily understandable. The cardiopulmonary examination revealed tachycardia without murmurs, rubs, or gallop; the lungs were clear to auscultation bilaterally. The neurological examination revealed 5/5 motor strength in the upper extremities and symmetrical; there was no pronator drift. The left leg had 2/5 motor strength compared to 5/5 in the right lower extremity. There was also fullness and tenderness over his suprapubic region. 

The emergency physician (EP) ordered a complete blood count, basic metabolic profile, carboxyhemoglobin (COHb) test, electrocardiogram (ECG), portable chest X-ray (CXR), and a noncontrast computed tomography (CT) scan of the head. Since the history and physical examination suggested urinary retention, a Foley catheter was placed; a total of 1,200 cc of clear urine was obtained, after which the patient expressed a feeling of relief.

The patient’s COHb level was 8.5%. The portable CXR and CT scan of the head were both reported as normal by the radiologist. Likewise, the results of the rest of the laboratory evaluation were normal. The ECG revealed sinus tachycardia without evidence of strain or injury.

The EP diagnosed an acute cerebrovascular accident (CVA) and admitted the patient to the hospital. He did not feel that carbon monoxide (CO) contributed to the event given the low level in a cigarette smoker. After an uneventful hospital stay, the patient was transferred to a physical rehabilitation unit. He was ultimately discharged with a neurogenic bladder and weak left leg.

The patient sued the EP for negligence in the failure to diagnose CO poisoning and prompt initiation of 100% O₂ therapy. The EP argued that CO poisoning had been properly ruled out and that the diagnosis of CVA was correct. The defense also claimed that even if the patient had suffered CO poisoning, the length of the exposure would have led to the same outcome. A defense verdict was returned.

Discussion

Carbon monoxide poisoning is one of the leading causes of poisoning morbidity and mortality in the United States. This is in part due to the fact that CO is a colorless, odorless, and tasteless gas. The peak incidence for CO poisoning is in the fall and winter, when people are more likely to use space heaters, wood burning stoves, or portable generators inside without adequate ventilation. 

The clinical presentation of CO poisoning can range from mild (eg, headache, flu-like symptoms) to devastating (eg, coma, death). The central nervous system is the organ system that is most sensitive to CO poisoning. Symptoms can range from a dull frontal headache, dizziness, and ataxia, to syncope, seizures, focal neurological deficit, and coma. In fact, the most serious complication of CO poisoning may be persistent or delayed neurological or neurocognitive sequelae, which can occur in up to 50% of patients with symptomatic acute poisoning.¹  Unfortunately, COHb levels and symptoms do not always correlate well. In fact, particular COHb levels are not predictive of symptoms or outcome.¹

The treatment for CO poisoning consists of administering 100% O₂ as soon as the diagnosis is considered. If 100% O₂ is administered, the half-life of COHb can be reduced from 5 hours (room air) to approximately 1 hour.¹ While some argue that treatment with hyperbaric O₂ (HBO) therapy should be considered standard of care, it has not yet been determined which patient population benefits from HBO therapy; moreover, there is currently no established optimum timing of therapy. Regardless, the jury came to the correct decision in this case as it is impossible to determine, with any degree of medical certainty, if the patient’s neurological deficits were due to the natural course of an ischemic stroke, or if CO contributed to or was the sole cause of the CVA.

Death in the Emergency Department

A 43-year-old man presented to the ED with the chief complaint of a lower lip laceration. The patient stated he had gotten into an altercation with his girlfriend just prior to arrival. She had punched the patient in the face with her fist, resulting in the lip laceration. The patient denied any loss of consciousness or other pain. He did, however, smell of alcohol and was emotionally labile, crying one moment and yelling the next.

The patient was instructed to remove all of his clothes, change into a hospital gown and give all of his belongings to hospital security. He removed his clothes, but refused to turn them over to security. This prompted a physical altercation between the patient and hospital security. Three hospital security guards wrestled the patient to the ground and placed him face down; one guard placed the patient in a choke hold while the other two guards sat on top of him. Within a few moments, the patient became unresponsive. He was placed immediately on a stretcher and intubated by the EP. After successful intubation and bagging with 100% O₂, the patient regained a palpable pulse, but remained unresponsive.

The patient was admitted to the intensive care unit, but never regained consciousness and died 5 days later. The cause of death was thought to be anoxic brain injury due to asphyxiation. The family of the patient sued the hospital and the EP for causing asphyxiation and death in this patient seeking medical care. The hospital denied responsibility for the death because the patient both instigated the altercation and had a preexisting heart condition. According to published reports, a $2.5 million settlement was reached.

Discussion

This unfortunate case did not involve the EP; all of the important events transpired prior to the EP’s initial interaction with the patient. There are not enough details to explain how this situation escalated so rapidly, or why hospital security felt this was the best way to subdue the patient.

Unfortunately, EPs are no strangers to agitated patients. Behavioral emergencies account for approximately 5% of all ED visits, and these usually involve some form of violence or agitation.¹  Every physician and nurse working in the ED must be prepared to deal with patients who have the potential to become violent. Clearly, training of all patient-care personnel to handle such patients in the ED is important to ensuring both staff and patient safety. Having the patient undress and change into a hospital gown is the correct first step. This allows for removal of real or potential weapons, and makes it much less likely for the patient to leave before his or her evaluation and management is complete. Doing this properly, however, is key. Providing the patient with a warm blanket or food, or just talking to him or her in a calm and reassuring voice, can often prevent escalation. Simply arguing with the patient rarely works, and often has the opposite desired effect.

If the situation continues to escalate, and it appears either physical or chemical restraint will be necessary, a “show of force” should be made. A restraint team consisting of at least five trained members should be assembled, with the EP acting as the team leader. The team should all enter the room at the same time, explain what will happen, and then move quickly.¹ The leader should move to the head of the bed and direct the team, while the remaining four members each take a limb. To preserve the physician-patient relationship, it is best if the EP is not actively involved in placing the physical restraints.

The choke hold should only be considered as a method of last resort. Many police departments in the country prohibit use of the choke hold because of complications such as those observed in this case. The use of choke holds became a topic of intense debate this summer with the death of Eric Garner in Staten Island, New York; it was thought that his pre-existing conditions of obesity, asthma, and heart disease were all aggravated by the choke hold. Although obese patients are often at a higher risk for complications due to pre-existing issues with adequate oxygenation, it is unclear whether the patient in this case was obese.

An alternative strategy in handling an agitated patient would be the use of a taser by trained security personnel. In one study, 99.75% of tasered patients had no significant injury as a result of the device.² In 2009, the American Medical Association found that tasers, “when used appropriately, can save lives during interventions that would have otherwise involved the use of deadly force.” While the safety of patients and the ED staff (nurses, physicians, and technicians) is paramount, the clinician should always adhere to the principle of “primum non nocere”—“first, do no harm.”

Carbon Monoxide Poisoning

A 72-year-old man was brought to the ED by paramedics with inability to move his left leg and difficulty speaking. The patient had been heating his home with a generator placed inside the house during an ice storm, and paramedics reported a strong smell of gas inside the house.

The patient was unable to describe the time of onset of his symptoms. He complained of headache, slurred speech, and inability to move his left leg. He also said he felt the urge to urinate, but was unable to do so. He denied chest pain or shortness of breath. His medical history was significant only for hypertension, which was controlled with hydrochlorothiazide and lisinopril. He admitted to smoking a few cigarettes daily, but denied any alcohol use.

On physical examination, the patient’s vital signs were: blood pressure (BP) 162/98 mm Hg; heart rate (HR), 110 beats/minute; respiratory rate (RR), 20 breaths/minute; and temperature (T), 98.6˚F. The patient had 100% oxygen (O₂) saturation on 4L O₂ via nasal cannula. The head, eyes, ears, nose, and throat examination was normal. There was no facial droop; his speech was slurred, but he was easily understandable. The cardiopulmonary examination revealed tachycardia without murmurs, rubs, or gallop; the lungs were clear to auscultation bilaterally. The neurological examination revealed 5/5 motor strength in the upper extremities and symmetrical; there was no pronator drift. The left leg had 2/5 motor strength compared to 5/5 in the right lower extremity. There was also fullness and tenderness over his suprapubic region. 

The emergency physician (EP) ordered a complete blood count, basic metabolic profile, carboxyhemoglobin (COHb) test, electrocardiogram (ECG), portable chest X-ray (CXR), and a noncontrast computed tomography (CT) scan of the head. Since the history and physical examination suggested urinary retention, a Foley catheter was placed; a total of 1,200 cc of clear urine was obtained, after which the patient expressed a feeling of relief.

The patient’s COHb level was 8.5%. The portable CXR and CT scan of the head were both reported as normal by the radiologist. Likewise, the results of the rest of the laboratory evaluation were normal. The ECG revealed sinus tachycardia without evidence of strain or injury.

The EP diagnosed an acute cerebrovascular accident (CVA) and admitted the patient to the hospital. He did not feel that carbon monoxide (CO) contributed to the event given the low level in a cigarette smoker. After an uneventful hospital stay, the patient was transferred to a physical rehabilitation unit. He was ultimately discharged with a neurogenic bladder and weak left leg.

The patient sued the EP for negligence in the failure to diagnose CO poisoning and prompt initiation of 100% O₂ therapy. The EP argued that CO poisoning had been properly ruled out and that the diagnosis of CVA was correct. The defense also claimed that even if the patient had suffered CO poisoning, the length of the exposure would have led to the same outcome. A defense verdict was returned.

Discussion

Carbon monoxide poisoning is one of the leading causes of poisoning morbidity and mortality in the United States. This is in part due to the fact that CO is a colorless, odorless, and tasteless gas. The peak incidence for CO poisoning is in the fall and winter, when people are more likely to use space heaters, wood burning stoves, or portable generators inside without adequate ventilation. 

The clinical presentation of CO poisoning can range from mild (eg, headache, flu-like symptoms) to devastating (eg, coma, death). The central nervous system is the organ system that is most sensitive to CO poisoning. Symptoms can range from a dull frontal headache, dizziness, and ataxia, to syncope, seizures, focal neurological deficit, and coma. In fact, the most serious complication of CO poisoning may be persistent or delayed neurological or neurocognitive sequelae, which can occur in up to 50% of patients with symptomatic acute poisoning.¹  Unfortunately, COHb levels and symptoms do not always correlate well. In fact, particular COHb levels are not predictive of symptoms or outcome.¹

The treatment for CO poisoning consists of administering 100% O₂ as soon as the diagnosis is considered. If 100% O₂ is administered, the half-life of COHb can be reduced from 5 hours (room air) to approximately 1 hour.¹ While some argue that treatment with hyperbaric O₂ (HBO) therapy should be considered standard of care, it has not yet been determined which patient population benefits from HBO therapy; moreover, there is currently no established optimum timing of therapy. Regardless, the jury came to the correct decision in this case as it is impossible to determine, with any degree of medical certainty, if the patient’s neurological deficits were due to the natural course of an ischemic stroke, or if CO contributed to or was the sole cause of the CVA.

Death in the Emergency Department

A 43-year-old man presented to the ED with the chief complaint of a lower lip laceration. The patient stated he had gotten into an altercation with his girlfriend just prior to arrival. She had punched the patient in the face with her fist, resulting in the lip laceration. The patient denied any loss of consciousness or other pain. He did, however, smell of alcohol and was emotionally labile, crying one moment and yelling the next.

The patient was instructed to remove all of his clothes, change into a hospital gown and give all of his belongings to hospital security. He removed his clothes, but refused to turn them over to security. This prompted a physical altercation between the patient and hospital security. Three hospital security guards wrestled the patient to the ground and placed him face down; one guard placed the patient in a choke hold while the other two guards sat on top of him. Within a few moments, the patient became unresponsive. He was placed immediately on a stretcher and intubated by the EP. After successful intubation and bagging with 100% O₂, the patient regained a palpable pulse, but remained unresponsive.

The patient was admitted to the intensive care unit, but never regained consciousness and died 5 days later. The cause of death was thought to be anoxic brain injury due to asphyxiation. The family of the patient sued the hospital and the EP for causing asphyxiation and death in this patient seeking medical care. The hospital denied responsibility for the death because the patient both instigated the altercation and had a preexisting heart condition. According to published reports, a $2.5 million settlement was reached.

Discussion

This unfortunate case did not involve the EP; all of the important events transpired prior to the EP’s initial interaction with the patient. There are not enough details to explain how this situation escalated so rapidly, or why hospital security felt this was the best way to subdue the patient.

Unfortunately, EPs are no strangers to agitated patients. Behavioral emergencies account for approximately 5% of all ED visits, and these usually involve some form of violence or agitation.¹  Every physician and nurse working in the ED must be prepared to deal with patients who have the potential to become violent. Clearly, training of all patient-care personnel to handle such patients in the ED is important to ensuring both staff and patient safety. Having the patient undress and change into a hospital gown is the correct first step. This allows for removal of real or potential weapons, and makes it much less likely for the patient to leave before his or her evaluation and management is complete. Doing this properly, however, is key. Providing the patient with a warm blanket or food, or just talking to him or her in a calm and reassuring voice, can often prevent escalation. Simply arguing with the patient rarely works, and often has the opposite desired effect.

If the situation continues to escalate, and it appears either physical or chemical restraint will be necessary, a “show of force” should be made. A restraint team consisting of at least five trained members should be assembled, with the EP acting as the team leader. The team should all enter the room at the same time, explain what will happen, and then move quickly.¹ The leader should move to the head of the bed and direct the team, while the remaining four members each take a limb. To preserve the physician-patient relationship, it is best if the EP is not actively involved in placing the physical restraints.

The choke hold should only be considered as a method of last resort. Many police departments in the country prohibit use of the choke hold because of complications such as those observed in this case. The use of choke holds became a topic of intense debate this summer with the death of Eric Garner in Staten Island, New York; it was thought that his pre-existing conditions of obesity, asthma, and heart disease were all aggravated by the choke hold. Although obese patients are often at a higher risk for complications due to pre-existing issues with adequate oxygenation, it is unclear whether the patient in this case was obese.

An alternative strategy in handling an agitated patient would be the use of a taser by trained security personnel. In one study, 99.75% of tasered patients had no significant injury as a result of the device.² In 2009, the American Medical Association found that tasers, “when used appropriately, can save lives during interventions that would have otherwise involved the use of deadly force.” While the safety of patients and the ED staff (nurses, physicians, and technicians) is paramount, the clinician should always adhere to the principle of “primum non nocere”—“first, do no harm.”

Question: C, age 17 years, was diagnosed with Hodgkin’s lymphoma. According to her oncologists, chemotherapy would offer an 80% chance of cure, whereas death within 2 years was almost a certainty without treatment. C refused treatment, a decision supported by her mother. Under these facts, which of the following is best?

A. C has a constitutional right to forgo medical treatment.

B. C is a minor and needs parental consent regarding all medical intervention.

C. The mother’s refusal to give consent means the doctors have no recourse but to accept the joint decision of mother and daughter.

D. If C can show she is a mature minor or an emancipated minor, she can then decide for herself.

E. In life-and-death matters, the state has the authority to compel lifesaving beneficial treatment without prior judicial approval.

Answer: D. The above scenario raises the issue of doing what’s best when a minor refuses clearly beneficial medical treatment. It is taken from a very recent case wherein the Connecticut Supreme Court held that the state could force treatment in a minor with Hodgkin’s lymphoma. The patient, a 17-year-old teenager, knowingly and with full information, objected to receiving treatment, a decision supported by her mother. There was no finding of mental incompetence or deficiency in either mother or daughter. Can the daughter, against her will, be forced to receive treatment?

The teenager, known as Cassandra, was diagnosed with Hodgkin’s lymphoma, which her oncologists believed had an 80% chance of remission if treated with chemotherapy. Cassandra refused, a decision supported by her mother with whom she lives. Placed under the jurisdiction of Connecticut’s Department of Children and Families (DCF), she initially agreed to a trial of medication if the state allowed her to stay at home with her mother, but she ran away. The case is reminiscent of Billy Best, a 16-year-old diagnosed with Hodgkin’s disease in August 1994, who ran away from his Massachusetts home after 2½ months of chemotherapy because he felt the medicine was killing him instead of helping him.¹

In order to compel treatment, DCF had to obtain judicial approval, which the lower court granted notwithstanding arguments that forcing Cassandra to undergo unwanted medical treatment against her will violated her constitutional substantive due process rights. Also, as there was no competency hearing, so the litigants asserted that this was also a violation of her procedural due process rights. On appeal, the Supreme Court of Connecticut found that Cassandra was not a mature minor, and thus had no constitutional claim to the right of medical decision-making autonomy.² The Court unanimously ruled that the state could compel treatment. Its final opinion is yet to be published, but in its preliminary order, the Court wrote: “… Cassandra is suffering from Hodgkin’s lymphoma, a cancer that has a high rate of cure if treated and that will certainly kill Cassandra if not treated … Cassandra represented, under oath … that she would undergo treatment for her cancer if she were allowed to return home, and then was allowed to do so, she ran away from home and stopped treatment. Thus, … Cassandra either intentionally misrepresented her intentions to the trial court or she changed her mind on this issue of life and death. In either case, her conduct amply supports Judge Quinn’s finding that the respondents have failed to prove that Cassandra was a mature minor under any standard.”

Whereas all adults of sound mind are presumed to be competent to give informed consent, the doctor typically needs permission from the parents or guardian for a minor unless emancipated, i.e., conducting himself or herself as an adult and is no longer under the support or control of the parents. Another exception is the “mature minor,” a term used to describe the minor who is able to understand the nature and consequences of treatment. In 1987, the Tennessee Supreme Court was the first to recognize a mature minor exception to the common law rule that requires a physician to obtain parental consent.³ The issue there was whether Sandra, an alleged malpractice victim 5 months shy of her 18th birthday, was capable of giving consent for an osteopathic treatment. The court acknowledged that for well over a century, the common law recognized that minors achieved varying degrees of maturity and responsibility, and referenced the common law rule of capacity, known as “The Rule of Sevens.” The Rule presumes differing levels of capacity depending on whether the individual is less than 7 years old, between the ages of 7 and 14, or older than 14 years. The youngest group lacks capacity, but a rebuttable presumption of lack of capacity exists for children between the ages of 7 and 14, and one presuming capacity exists for children between the ages of 14 and 21. In Commonwealth jurisdictions, the term “Gillick competence” is used to describe a minor under the age of 16 years who is deemed to have legal capacity to consent to medical treatment if there is sufficient intelligence and maturity to understand the nature, implications, and consequences of treatment.

Two years later in a landmark case,⁴ the Illinois Supreme Court specifically recognized the right of some minors to refuse medical treatment. The litigant was a 17-year-old girl with leukemia who needed life-sustaining blood transfusions. Both the minor and her mother were Jehovah’s Witnesses, and withheld consent to the blood transfusion because of their religious beliefs. The Court opined that the age of majority, “is not an impenetrable barrier that magically precludes a minor from possessing and exercising certain rights normally associated with adulthood,” and that if clear and convincing evidence was presented regarding maturity, then the “mature minor doctrine affords [the minor] the common law right to consent to or refuse medical treatment.” The following year, the Maine Supreme Judicial Court held that a minor’s clear and convincing decision not to be maintained by life-sustaining procedures must be respected.⁵ In that instance, Chad, a minor just under 18, had lapsed into a persistent vegetative state following an auto accident.

Other court decisions favoring the minor abound.⁶ For example, a court held that a 14-year-old boy could decide whether he wanted his cleft palate and harelip repaired, regardless of his father’s objections to the operation. In another case, the court ordered treatment for a 12-year-old arthritis victim whose parents relied on faith healing, where there was uncontested medical testimony in favor of treatment. In yet another, a 13-year-old boy was placed under state supervision for purposes of receiving chemotherapy and surgery that was estimated to have a 65% of curing his cancer. The court ruled that the information given by his father regarding the preference for and effectiveness of herbal therapy was wrong, and the minor’s refusal of consent was not an informed one. On the other hand, even a mature minor does not have an unfettered right to refuse treatment, especially where such refusal is against medical advice. For example, a 16-year-old was forced, against her will, to accept tube feedings to treat her condition of anorexia nervosa.

In addressing the right of mature minors to refuse life-sustaining treatment, the 1985 New York Task Force on Life and the Law acknowledged the need to balance “the developing rights of the minor and parental rights,” and society’s interest “in promoting the autonomy and well-being of minors.” The Task Force recognized that some minors have the maturity and capacity to participate in medical decisions, and recommended that the treating physician assess the minor’s maturity, conceptual ability and life’s experience in order for the minor to assume a substantial, though not exclusive, role in decisions to refuse life-sustaining treatment.

Notes

1. Joan-Margaret Kun, Rejecting the Adage Children Should Be Seen and Not Heard – The Mature Minor Doctrine, 16 Pace L. Rev. 423 (1996). Available at http://digitalcommons.pace.edu/plr/vol16/iss2/13.

2. In re Cassandra C., Supreme Court, State of Connecticut, No. 19426, Jan. 8, 2015.

3. Cardwell v. Bechtol, 724 S.W. 2d 739 (Tenn. 1987)

4. In re E.G., 549 N.E. 2d 322 (Ill. 1990).

5. In re Swan, 569 A. 2d 1202 (Me. 1990).

6. Weir RF and Peters C. Affirming the Decisions Adolescents Make about Life and Death. Hastings Center Report 1997; 27:29-40.

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu, and currently directs the St. Francis International Center for Healthcare Ethics, also in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: C, age 17 years, was diagnosed with Hodgkin’s lymphoma. According to her oncologists, chemotherapy would offer an 80% chance of cure, whereas death within 2 years was almost a certainty without treatment. C refused treatment, a decision supported by her mother. Under these facts, which of the following is best?

A. C has a constitutional right to forgo medical treatment.

B. C is a minor and needs parental consent regarding all medical intervention.

C. The mother’s refusal to give consent means the doctors have no recourse but to accept the joint decision of mother and daughter.

D. If C can show she is a mature minor or an emancipated minor, she can then decide for herself.

E. In life-and-death matters, the state has the authority to compel lifesaving beneficial treatment without prior judicial approval.

Answer: D. The above scenario raises the issue of doing what’s best when a minor refuses clearly beneficial medical treatment. It is taken from a very recent case wherein the Connecticut Supreme Court held that the state could force treatment in a minor with Hodgkin’s lymphoma. The patient, a 17-year-old teenager, knowingly and with full information, objected to receiving treatment, a decision supported by her mother. There was no finding of mental incompetence or deficiency in either mother or daughter. Can the daughter, against her will, be forced to receive treatment?

The teenager, known as Cassandra, was diagnosed with Hodgkin’s lymphoma, which her oncologists believed had an 80% chance of remission if treated with chemotherapy. Cassandra refused, a decision supported by her mother with whom she lives. Placed under the jurisdiction of Connecticut’s Department of Children and Families (DCF), she initially agreed to a trial of medication if the state allowed her to stay at home with her mother, but she ran away. The case is reminiscent of Billy Best, a 16-year-old diagnosed with Hodgkin’s disease in August 1994, who ran away from his Massachusetts home after 2½ months of chemotherapy because he felt the medicine was killing him instead of helping him.¹

In order to compel treatment, DCF had to obtain judicial approval, which the lower court granted notwithstanding arguments that forcing Cassandra to undergo unwanted medical treatment against her will violated her constitutional substantive due process rights. Also, as there was no competency hearing, so the litigants asserted that this was also a violation of her procedural due process rights. On appeal, the Supreme Court of Connecticut found that Cassandra was not a mature minor, and thus had no constitutional claim to the right of medical decision-making autonomy.² The Court unanimously ruled that the state could compel treatment. Its final opinion is yet to be published, but in its preliminary order, the Court wrote: “… Cassandra is suffering from Hodgkin’s lymphoma, a cancer that has a high rate of cure if treated and that will certainly kill Cassandra if not treated … Cassandra represented, under oath … that she would undergo treatment for her cancer if she were allowed to return home, and then was allowed to do so, she ran away from home and stopped treatment. Thus, … Cassandra either intentionally misrepresented her intentions to the trial court or she changed her mind on this issue of life and death. In either case, her conduct amply supports Judge Quinn’s finding that the respondents have failed to prove that Cassandra was a mature minor under any standard.”

Whereas all adults of sound mind are presumed to be competent to give informed consent, the doctor typically needs permission from the parents or guardian for a minor unless emancipated, i.e., conducting himself or herself as an adult and is no longer under the support or control of the parents. Another exception is the “mature minor,” a term used to describe the minor who is able to understand the nature and consequences of treatment. In 1987, the Tennessee Supreme Court was the first to recognize a mature minor exception to the common law rule that requires a physician to obtain parental consent.³ The issue there was whether Sandra, an alleged malpractice victim 5 months shy of her 18th birthday, was capable of giving consent for an osteopathic treatment. The court acknowledged that for well over a century, the common law recognized that minors achieved varying degrees of maturity and responsibility, and referenced the common law rule of capacity, known as “The Rule of Sevens.” The Rule presumes differing levels of capacity depending on whether the individual is less than 7 years old, between the ages of 7 and 14, or older than 14 years. The youngest group lacks capacity, but a rebuttable presumption of lack of capacity exists for children between the ages of 7 and 14, and one presuming capacity exists for children between the ages of 14 and 21. In Commonwealth jurisdictions, the term “Gillick competence” is used to describe a minor under the age of 16 years who is deemed to have legal capacity to consent to medical treatment if there is sufficient intelligence and maturity to understand the nature, implications, and consequences of treatment.

Two years later in a landmark case,⁴ the Illinois Supreme Court specifically recognized the right of some minors to refuse medical treatment. The litigant was a 17-year-old girl with leukemia who needed life-sustaining blood transfusions. Both the minor and her mother were Jehovah’s Witnesses, and withheld consent to the blood transfusion because of their religious beliefs. The Court opined that the age of majority, “is not an impenetrable barrier that magically precludes a minor from possessing and exercising certain rights normally associated with adulthood,” and that if clear and convincing evidence was presented regarding maturity, then the “mature minor doctrine affords [the minor] the common law right to consent to or refuse medical treatment.” The following year, the Maine Supreme Judicial Court held that a minor’s clear and convincing decision not to be maintained by life-sustaining procedures must be respected.⁵ In that instance, Chad, a minor just under 18, had lapsed into a persistent vegetative state following an auto accident.

Other court decisions favoring the minor abound.⁶ For example, a court held that a 14-year-old boy could decide whether he wanted his cleft palate and harelip repaired, regardless of his father’s objections to the operation. In another case, the court ordered treatment for a 12-year-old arthritis victim whose parents relied on faith healing, where there was uncontested medical testimony in favor of treatment. In yet another, a 13-year-old boy was placed under state supervision for purposes of receiving chemotherapy and surgery that was estimated to have a 65% of curing his cancer. The court ruled that the information given by his father regarding the preference for and effectiveness of herbal therapy was wrong, and the minor’s refusal of consent was not an informed one. On the other hand, even a mature minor does not have an unfettered right to refuse treatment, especially where such refusal is against medical advice. For example, a 16-year-old was forced, against her will, to accept tube feedings to treat her condition of anorexia nervosa.

In addressing the right of mature minors to refuse life-sustaining treatment, the 1985 New York Task Force on Life and the Law acknowledged the need to balance “the developing rights of the minor and parental rights,” and society’s interest “in promoting the autonomy and well-being of minors.” The Task Force recognized that some minors have the maturity and capacity to participate in medical decisions, and recommended that the treating physician assess the minor’s maturity, conceptual ability and life’s experience in order for the minor to assume a substantial, though not exclusive, role in decisions to refuse life-sustaining treatment.

Notes

1. Joan-Margaret Kun, Rejecting the Adage Children Should Be Seen and Not Heard – The Mature Minor Doctrine, 16 Pace L. Rev. 423 (1996). Available at http://digitalcommons.pace.edu/plr/vol16/iss2/13.

2. In re Cassandra C., Supreme Court, State of Connecticut, No. 19426, Jan. 8, 2015.

3. Cardwell v. Bechtol, 724 S.W. 2d 739 (Tenn. 1987)

4. In re E.G., 549 N.E. 2d 322 (Ill. 1990).

5. In re Swan, 569 A. 2d 1202 (Me. 1990).

6. Weir RF and Peters C. Affirming the Decisions Adolescents Make about Life and Death. Hastings Center Report 1997; 27:29-40.

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu, and currently directs the St. Francis International Center for Healthcare Ethics, also in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: C, age 17 years, was diagnosed with Hodgkin’s lymphoma. According to her oncologists, chemotherapy would offer an 80% chance of cure, whereas death within 2 years was almost a certainty without treatment. C refused treatment, a decision supported by her mother. Under these facts, which of the following is best?

A. C has a constitutional right to forgo medical treatment.

B. C is a minor and needs parental consent regarding all medical intervention.

C. The mother’s refusal to give consent means the doctors have no recourse but to accept the joint decision of mother and daughter.

D. If C can show she is a mature minor or an emancipated minor, she can then decide for herself.

E. In life-and-death matters, the state has the authority to compel lifesaving beneficial treatment without prior judicial approval.

Answer: D. The above scenario raises the issue of doing what’s best when a minor refuses clearly beneficial medical treatment. It is taken from a very recent case wherein the Connecticut Supreme Court held that the state could force treatment in a minor with Hodgkin’s lymphoma. The patient, a 17-year-old teenager, knowingly and with full information, objected to receiving treatment, a decision supported by her mother. There was no finding of mental incompetence or deficiency in either mother or daughter. Can the daughter, against her will, be forced to receive treatment?

The teenager, known as Cassandra, was diagnosed with Hodgkin’s lymphoma, which her oncologists believed had an 80% chance of remission if treated with chemotherapy. Cassandra refused, a decision supported by her mother with whom she lives. Placed under the jurisdiction of Connecticut’s Department of Children and Families (DCF), she initially agreed to a trial of medication if the state allowed her to stay at home with her mother, but she ran away. The case is reminiscent of Billy Best, a 16-year-old diagnosed with Hodgkin’s disease in August 1994, who ran away from his Massachusetts home after 2½ months of chemotherapy because he felt the medicine was killing him instead of helping him.¹

In order to compel treatment, DCF had to obtain judicial approval, which the lower court granted notwithstanding arguments that forcing Cassandra to undergo unwanted medical treatment against her will violated her constitutional substantive due process rights. Also, as there was no competency hearing, so the litigants asserted that this was also a violation of her procedural due process rights. On appeal, the Supreme Court of Connecticut found that Cassandra was not a mature minor, and thus had no constitutional claim to the right of medical decision-making autonomy.² The Court unanimously ruled that the state could compel treatment. Its final opinion is yet to be published, but in its preliminary order, the Court wrote: “… Cassandra is suffering from Hodgkin’s lymphoma, a cancer that has a high rate of cure if treated and that will certainly kill Cassandra if not treated … Cassandra represented, under oath … that she would undergo treatment for her cancer if she were allowed to return home, and then was allowed to do so, she ran away from home and stopped treatment. Thus, … Cassandra either intentionally misrepresented her intentions to the trial court or she changed her mind on this issue of life and death. In either case, her conduct amply supports Judge Quinn’s finding that the respondents have failed to prove that Cassandra was a mature minor under any standard.”

Whereas all adults of sound mind are presumed to be competent to give informed consent, the doctor typically needs permission from the parents or guardian for a minor unless emancipated, i.e., conducting himself or herself as an adult and is no longer under the support or control of the parents. Another exception is the “mature minor,” a term used to describe the minor who is able to understand the nature and consequences of treatment. In 1987, the Tennessee Supreme Court was the first to recognize a mature minor exception to the common law rule that requires a physician to obtain parental consent.³ The issue there was whether Sandra, an alleged malpractice victim 5 months shy of her 18th birthday, was capable of giving consent for an osteopathic treatment. The court acknowledged that for well over a century, the common law recognized that minors achieved varying degrees of maturity and responsibility, and referenced the common law rule of capacity, known as “The Rule of Sevens.” The Rule presumes differing levels of capacity depending on whether the individual is less than 7 years old, between the ages of 7 and 14, or older than 14 years. The youngest group lacks capacity, but a rebuttable presumption of lack of capacity exists for children between the ages of 7 and 14, and one presuming capacity exists for children between the ages of 14 and 21. In Commonwealth jurisdictions, the term “Gillick competence” is used to describe a minor under the age of 16 years who is deemed to have legal capacity to consent to medical treatment if there is sufficient intelligence and maturity to understand the nature, implications, and consequences of treatment.

Two years later in a landmark case,⁴ the Illinois Supreme Court specifically recognized the right of some minors to refuse medical treatment. The litigant was a 17-year-old girl with leukemia who needed life-sustaining blood transfusions. Both the minor and her mother were Jehovah’s Witnesses, and withheld consent to the blood transfusion because of their religious beliefs. The Court opined that the age of majority, “is not an impenetrable barrier that magically precludes a minor from possessing and exercising certain rights normally associated with adulthood,” and that if clear and convincing evidence was presented regarding maturity, then the “mature minor doctrine affords [the minor] the common law right to consent to or refuse medical treatment.” The following year, the Maine Supreme Judicial Court held that a minor’s clear and convincing decision not to be maintained by life-sustaining procedures must be respected.⁵ In that instance, Chad, a minor just under 18, had lapsed into a persistent vegetative state following an auto accident.

Other court decisions favoring the minor abound.⁶ For example, a court held that a 14-year-old boy could decide whether he wanted his cleft palate and harelip repaired, regardless of his father’s objections to the operation. In another case, the court ordered treatment for a 12-year-old arthritis victim whose parents relied on faith healing, where there was uncontested medical testimony in favor of treatment. In yet another, a 13-year-old boy was placed under state supervision for purposes of receiving chemotherapy and surgery that was estimated to have a 65% of curing his cancer. The court ruled that the information given by his father regarding the preference for and effectiveness of herbal therapy was wrong, and the minor’s refusal of consent was not an informed one. On the other hand, even a mature minor does not have an unfettered right to refuse treatment, especially where such refusal is against medical advice. For example, a 16-year-old was forced, against her will, to accept tube feedings to treat her condition of anorexia nervosa.

In addressing the right of mature minors to refuse life-sustaining treatment, the 1985 New York Task Force on Life and the Law acknowledged the need to balance “the developing rights of the minor and parental rights,” and society’s interest “in promoting the autonomy and well-being of minors.” The Task Force recognized that some minors have the maturity and capacity to participate in medical decisions, and recommended that the treating physician assess the minor’s maturity, conceptual ability and life’s experience in order for the minor to assume a substantial, though not exclusive, role in decisions to refuse life-sustaining treatment.

Notes

1. Joan-Margaret Kun, Rejecting the Adage Children Should Be Seen and Not Heard – The Mature Minor Doctrine, 16 Pace L. Rev. 423 (1996). Available at http://digitalcommons.pace.edu/plr/vol16/iss2/13.

2. In re Cassandra C., Supreme Court, State of Connecticut, No. 19426, Jan. 8, 2015.

3. Cardwell v. Bechtol, 724 S.W. 2d 739 (Tenn. 1987)

4. In re E.G., 549 N.E. 2d 322 (Ill. 1990).

5. In re Swan, 569 A. 2d 1202 (Me. 1990).

6. Weir RF and Peters C. Affirming the Decisions Adolescents Make about Life and Death. Hastings Center Report 1997; 27:29-40.

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu, and currently directs the St. Francis International Center for Healthcare Ethics, also in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Would a cholesterol medication have made a difference?

A WOMAN WITH A HISTORY OF HYPERTENSION and hyperlipidemia sought treatment from her family physician (FP) for a protracted, nonproductive cough. The FP diagnosed sinusitis and reactive airway disease and prescribed steroids and antibiotics. The patient returned to the FP 5 more times over the next 9 weeks. The patient’s symptoms waxed and waned, but her cough continued. She reported chest tightness and shortness of breath on exertion. A chest x-ray revealed moderate heart enlargement. An echocardiogram was scheduled.

During the patient’s last visit, her FP noted that she had shortness of breath on exertion, but no chest pain. Three days later she suffered a massive myocardial infarction (MI). Cardiac catheterization found 80% occlusion of the left anterior descending artery. She underwent angioplasty and stent placement; after this procedure her ejection fraction was 25% to 30%. One month later, the patient received a pacemaker/defibrillator. The patient’s cardiac symptoms returned 7 months later, and she underwent another angioplasty. She improved and her last echocardiogram showed near-normal heart function.

PLAINTIFF’S CLAIM Although the patient had persistently elevated cholesterol levels, the FP failed to order repeat cholesterol studies and arrange for drug therapy. If the patient’s hyperlipidemia had been medically managed, her coronary artery disease would not have progressed to unstable angina and MI. The FP also failed to obtain routine electrocardiograms or an urgent cardiac consult after a chest x-ray showed an enlarged heart. The FP also failed to send the patient to an emergency department when she complained of shortness of breath on exertion.

THE DEFENSE An urgent cardiac work-up was not indicated and the patient’s cholesterol levels were only mildly elevated and did not require medical management. Her MI was unavoidable since most infarctions are due to plaque rupture in coronary vessels that aren’t occluded enough to require treatment.

VERDICT $1.6 million Michigan verdict.

COMMENT I think the key issue in this difficult diagnostic case is not the lack of prescribing cholesterol medication, but the repeated office visits with no definite diagnosis. If the physician had escalated the evaluation more quickly, the MI might have been avoided.

Narcotic misstep has tragic consequences

Don’t break the law, even if your patient asks you to. Know your state laws regarding narcotic prescribing.A 47-YEAR-OLD MAN SOUGHT TREATMENT FOR DRUG ADDICTION. His physician prescribed methadone, despite not being licensed to do so. After 4 days of taking methadone, the patient went to the hospital because he felt dizzy and was having difficulty breathing. Two days after being examined and discharged, he died from methadone toxicity.

PLAINTIFF’S CLAIM The toxicity was caused by simultaneous use of methadone and alprazolam, which the patient also had been prescribed. The physician failed to recognize the potential toxicity and should have performed testing that could have revealed the simultaneous use of other drugs. In addition, the physician was not licensed to prescribe methadone.

THE DEFENSE The physician had recommended a licensed, qualified facility that could have treated the plaintiff, but the plaintiff preferred treatment in a setting that allowed him to remain anonymous.

VERDICT $1.15 million New York settlement.

COMMENT Don’t break the law, even if your patient asks you to. Know your state laws regarding narcotic prescribing. These are getting more stringent due to the rapid rise in prescription narcotic overdose deaths in the United States.

Would a cholesterol medication have made a difference?

A WOMAN WITH A HISTORY OF HYPERTENSION and hyperlipidemia sought treatment from her family physician (FP) for a protracted, nonproductive cough. The FP diagnosed sinusitis and reactive airway disease and prescribed steroids and antibiotics. The patient returned to the FP 5 more times over the next 9 weeks. The patient’s symptoms waxed and waned, but her cough continued. She reported chest tightness and shortness of breath on exertion. A chest x-ray revealed moderate heart enlargement. An echocardiogram was scheduled.

During the patient’s last visit, her FP noted that she had shortness of breath on exertion, but no chest pain. Three days later she suffered a massive myocardial infarction (MI). Cardiac catheterization found 80% occlusion of the left anterior descending artery. She underwent angioplasty and stent placement; after this procedure her ejection fraction was 25% to 30%. One month later, the patient received a pacemaker/defibrillator. The patient’s cardiac symptoms returned 7 months later, and she underwent another angioplasty. She improved and her last echocardiogram showed near-normal heart function.

PLAINTIFF’S CLAIM Although the patient had persistently elevated cholesterol levels, the FP failed to order repeat cholesterol studies and arrange for drug therapy. If the patient’s hyperlipidemia had been medically managed, her coronary artery disease would not have progressed to unstable angina and MI. The FP also failed to obtain routine electrocardiograms or an urgent cardiac consult after a chest x-ray showed an enlarged heart. The FP also failed to send the patient to an emergency department when she complained of shortness of breath on exertion.

THE DEFENSE An urgent cardiac work-up was not indicated and the patient’s cholesterol levels were only mildly elevated and did not require medical management. Her MI was unavoidable since most infarctions are due to plaque rupture in coronary vessels that aren’t occluded enough to require treatment.

VERDICT $1.6 million Michigan verdict.

COMMENT I think the key issue in this difficult diagnostic case is not the lack of prescribing cholesterol medication, but the repeated office visits with no definite diagnosis. If the physician had escalated the evaluation more quickly, the MI might have been avoided.

Narcotic misstep has tragic consequences

Don’t break the law, even if your patient asks you to. Know your state laws regarding narcotic prescribing.A 47-YEAR-OLD MAN SOUGHT TREATMENT FOR DRUG ADDICTION. His physician prescribed methadone, despite not being licensed to do so. After 4 days of taking methadone, the patient went to the hospital because he felt dizzy and was having difficulty breathing. Two days after being examined and discharged, he died from methadone toxicity.

PLAINTIFF’S CLAIM The toxicity was caused by simultaneous use of methadone and alprazolam, which the patient also had been prescribed. The physician failed to recognize the potential toxicity and should have performed testing that could have revealed the simultaneous use of other drugs. In addition, the physician was not licensed to prescribe methadone.

THE DEFENSE The physician had recommended a licensed, qualified facility that could have treated the plaintiff, but the plaintiff preferred treatment in a setting that allowed him to remain anonymous.

VERDICT $1.15 million New York settlement.

COMMENT Don’t break the law, even if your patient asks you to. Know your state laws regarding narcotic prescribing. These are getting more stringent due to the rapid rise in prescription narcotic overdose deaths in the United States.

Would a cholesterol medication have made a difference?

A WOMAN WITH A HISTORY OF HYPERTENSION and hyperlipidemia sought treatment from her family physician (FP) for a protracted, nonproductive cough. The FP diagnosed sinusitis and reactive airway disease and prescribed steroids and antibiotics. The patient returned to the FP 5 more times over the next 9 weeks. The patient’s symptoms waxed and waned, but her cough continued. She reported chest tightness and shortness of breath on exertion. A chest x-ray revealed moderate heart enlargement. An echocardiogram was scheduled.

During the patient’s last visit, her FP noted that she had shortness of breath on exertion, but no chest pain. Three days later she suffered a massive myocardial infarction (MI). Cardiac catheterization found 80% occlusion of the left anterior descending artery. She underwent angioplasty and stent placement; after this procedure her ejection fraction was 25% to 30%. One month later, the patient received a pacemaker/defibrillator. The patient’s cardiac symptoms returned 7 months later, and she underwent another angioplasty. She improved and her last echocardiogram showed near-normal heart function.

PLAINTIFF’S CLAIM Although the patient had persistently elevated cholesterol levels, the FP failed to order repeat cholesterol studies and arrange for drug therapy. If the patient’s hyperlipidemia had been medically managed, her coronary artery disease would not have progressed to unstable angina and MI. The FP also failed to obtain routine electrocardiograms or an urgent cardiac consult after a chest x-ray showed an enlarged heart. The FP also failed to send the patient to an emergency department when she complained of shortness of breath on exertion.

THE DEFENSE An urgent cardiac work-up was not indicated and the patient’s cholesterol levels were only mildly elevated and did not require medical management. Her MI was unavoidable since most infarctions are due to plaque rupture in coronary vessels that aren’t occluded enough to require treatment.

VERDICT $1.6 million Michigan verdict.

COMMENT I think the key issue in this difficult diagnostic case is not the lack of prescribing cholesterol medication, but the repeated office visits with no definite diagnosis. If the physician had escalated the evaluation more quickly, the MI might have been avoided.

Narcotic misstep has tragic consequences

Don’t break the law, even if your patient asks you to. Know your state laws regarding narcotic prescribing.A 47-YEAR-OLD MAN SOUGHT TREATMENT FOR DRUG ADDICTION. His physician prescribed methadone, despite not being licensed to do so. After 4 days of taking methadone, the patient went to the hospital because he felt dizzy and was having difficulty breathing. Two days after being examined and discharged, he died from methadone toxicity.

PLAINTIFF’S CLAIM The toxicity was caused by simultaneous use of methadone and alprazolam, which the patient also had been prescribed. The physician failed to recognize the potential toxicity and should have performed testing that could have revealed the simultaneous use of other drugs. In addition, the physician was not licensed to prescribe methadone.

THE DEFENSE The physician had recommended a licensed, qualified facility that could have treated the plaintiff, but the plaintiff preferred treatment in a setting that allowed him to remain anonymous.

VERDICT $1.15 million New York settlement.

COMMENT Don’t break the law, even if your patient asks you to. Know your state laws regarding narcotic prescribing. These are getting more stringent due to the rapid rise in prescription narcotic overdose deaths in the United States.

Traumatic Back Pain

An 84-year-old man with low-back pain following a motor vehicle crash was brought to the ED by emergency medical services (EMS). He had been the restrained driver, stopped at a traffic light, when he was struck from behind by a second vehicle.

In the ED, the patient only complained of low-back pain. He denied any radiation of pain or lower-extremity numbness or weakness. He also denied any head injury, loss of consciousness, neck pain, or abdominal pain. His past medical history was significant for hypertension, arthritis, and coronary artery disease.

On physical examination, the patient’s vital signs were normal. The head, eyes, ears, nose, and throat (HEENT) examination was also normal; specifically, there was no tenderness to palpation of the cervical spine in the posterior midline. Regarding the cardiopulmonary examination, auscultation of the lungs revealed clear, bilateral breath sounds; the heart examination was normal. The patient had a soft abdomen, without tenderness, guarding, or rebound. His pelvis was stable, but he did exhibit some tenderness on palpation of the lower-thoracic and upper-lumbar spine. The neurological examination revealed normal motor strength and sensation in the lower extremities.

The emergency physician (EP) ordered X-rays of the thoracic and lumbar spine and a urinalysis. The films were interpreted by both the EP and radiologist as normal; the results of the urinalysis were also normal. The patient was diagnosed with a lower back strain secondary to the motor vehicle crash and was discharged home with an analgesic.

The next day, however, the patient began to complain of increased back pain and lower-extremity numbness and weakness. He was brought back to the same hospital ED where he was noted to have severe weakness of both lower extremities and decreased sensation to touch. Additional imaging was performed, which demonstrated a fracture of T11 with spinal cord impingement. He was taken to surgery, but unfortunately the injury was permanent, and the patient was left with lower-extremity paralysis and bowel and bladder incontinence. 

The plaintiff sued the EP and the radiologist for not properly interpreting the initial X-rays. The defendants denied liability, asserting the patient’s injury was a result of the collision and that nothing could have prevented it. According to a published account, the jury returned a verdict finding the EP to be 40% at fault and the radiologist 60% at fault.

Discussion

Emergency physicians frequently manage patients experiencing pain or injury following a motor vehicle crash. If the patient is complaining of neck or back pain, the prehospital providers will immobilize the patient with a rigid cervical collar (ie, if neck pain is present) and a long backboard if pain anywhere along the spine is present (ie, cervical, thoracic, or lumbar).

When the initial airway, breathing, circulation, and disability assessment for the trauma patient is performed and found to be normal, a secondary examination should be performed. Trauma patients with back pain should be log-rolled onto their side, with spinal immobilization followed by visual inspection and palpation/percussion of the midline of the thoracic and lumbar spine. The presence of midline tenderness suggests an acute injury and the need to keep the patient immobilized. Patients should be removed off the backboard and onto the gurney mattress while immobilizing the spine. The standard hospital mattress provides acceptable spinal support.¹

Historically, plain radiographs of the thoracic and lumbar spine have been the imaging test of choice in the initial evaluation of suspected traumatic spinal column injury. However, similar to cervical spine trauma, computed tomography (CT) is assuming a larger role in the evaluation of patients with suspected thoracic or lumbar spine injury. When thoracic and abdominal CT scans are performed to evaluate for possible chest or abdominal trauma, those images can be reformatted and used to reconstruct images of the thoracic and lumbar spine, significantly reducing radiation exposure.¹ While CT is the gold standard imaging study for evaluation of bony or ligamentous injury of the spine, magnetic resonance imaging (MRI) is the study of choice for patients with neurological deficits or suspected spinal cord injury.

This patient had a completely normal neurological examination at initial presentation, so there was no indication for an MRI. The bony injury to T11 must have been very subtle for both the EP and the radiologist to have missed it. Unfortunately, the jury appears to have used the standard of “perfection,” rather than the “reasonable and prudent physician” in judging that the injury should have been detected. This case serves as a reminder that EPs cannot rely on consulting specialists to consistently and reliably provide accurate information. Moreover, this case emphasizes the need to consider CT imaging of the spine in the evaluation of patients with severe back pain of traumatic origin when plain radiographs appear normal.

Hip-Reduction Problem

A 79-year-old man with left hip pain presented to the ED via EMS. The patient stated that when he had bent over to retrieve his dropped glasses, he experienced the immediate onset of left hip pain and fell to the floor. He was unable to get up on his own and called EMS. The patient had undergone total left hip replacement 1 month prior. At presentation, he complained only of severe pain in his left hip; he denied head injury, neck pain or stiffness, chest pain, or abdominal pain. His past medical history was significant for hypertension and type 2 diabetes mellitus. The patient had no known drug allergies.

On physical examination, he was mildly tachycardic. His vital signs were: heart rate, 102 beats/minute; blood pressure, 156/88 mm Hg; respiratory rate, 20 breaths/minutes; and temperature, afebrile. His pulse oximetry was 98% on room air. The HEENT, lung, heart, and abdominal examinations were all normal. Standing at the foot of the bed, the patient had obvious shortening, internal rotation, and adduction of the left leg. The left knee was without tenderness or swelling. The neurovascular examination of the left lower extremity was completely normal.

Plain radiographs of the pelvis and left hip ordered by the EP demonstrated a posterior hip dislocation with intact hardware. The EP consulted the patient’s orthopedic physician, and both agreed the EP should attempt to reduce the dislocation in the ED. Using conscious sedation, the EP was able to reduce the dislocation, but postreduction films demonstrated a new fracture requiring orthopedic surgery. Unfortunately, the patient had a very difficult recovery, ultimately resulting in death.

The patient’s estate sued the EP, stating he should have had the orthopedic physician reduce the dislocation. The defense argued that fracture is a known complication of reduction of a dislocated hip. A defense verdict was returned.

Discussion

Approximately 85% to 90% of hip dislocations are posterior; the remaining 10% are anterior. Posterior hip dislocations are a common complication following total hip-replacement surgery.¹ Hip dislocation is a true orthopedic and time-dependent emergency. The longer the hip remains dislocated, the more likely complications are to occur, including osteonecrosis of the femoral head, arthritic degeneration of the hip joint, and long-term neurological sequelae.² The treatment of posterior hip dislocation (without fracture) is closed reduction as quickly as possible, and preferably within 6 hours.³ As this case demonstrates, minimal forces can result in a hip dislocation following a total hip replacement. In healthy patients, however, significant forces (eg, high-speed motor vehicle crashes) are required to cause posterior hip dislocation.

Patients with a posterior hip dislocation will present in severe pain and an inability to ambulate. In most cases of posterior hip dislocation, the affected lower extremity will be visibly shortened, internally rotated, and adducted. The knee should always be examined for injury, as well as performance of a thorough neurovascular examination of the affected extremity.

Plain X-ray films will usually identify a posterior hip dislocation. On an anteroposterior pelvis X-ray, the femoral head will be seen outside and just superior to the acetabulum. Special attention should be made to the acetabulum to ensure a concomitant acetabular fracture is not missed.

Indications for closed reduction of a posterior hip dislocation include dislocation with or without neurological deficit and no associated fracture, or dislocation with an associated fracture if no neurological deficits are present.² An open traumatic hip dislocation should only be reduced in the operating room.

It is certainly within the purview of the EP to attempt a closed reduction for a posterior hip dislocation if no contraindications exist. The patient will need to be sedated (ie, procedural sedation, conscious sedation, or moderate sedation) for any chance of success at reduction. While it is beyond the scope of this article to review the various techniques used to reduce a posterior hip dislocation, one of the guiding principles is that after two or three unsuccessful attempts by the EP to reduce the dislocation, no further attempts should be made and orthopedic surgery services should be consulted. This is because the risk of complications increases as the number of failed attempts increase.

It is unclear how many attempts the EP made in this case. Fracture is a known complication when attempting reduction for a hip dislocation, be it an orthopedic surgeon or an EP. It was certainly appropriate for the EP in this case to attempt closed reduction, given the importance of timely reduction.

Traumatic Back Pain

An 84-year-old man with low-back pain following a motor vehicle crash was brought to the ED by emergency medical services (EMS). He had been the restrained driver, stopped at a traffic light, when he was struck from behind by a second vehicle.

In the ED, the patient only complained of low-back pain. He denied any radiation of pain or lower-extremity numbness or weakness. He also denied any head injury, loss of consciousness, neck pain, or abdominal pain. His past medical history was significant for hypertension, arthritis, and coronary artery disease.

On physical examination, the patient’s vital signs were normal. The head, eyes, ears, nose, and throat (HEENT) examination was also normal; specifically, there was no tenderness to palpation of the cervical spine in the posterior midline. Regarding the cardiopulmonary examination, auscultation of the lungs revealed clear, bilateral breath sounds; the heart examination was normal. The patient had a soft abdomen, without tenderness, guarding, or rebound. His pelvis was stable, but he did exhibit some tenderness on palpation of the lower-thoracic and upper-lumbar spine. The neurological examination revealed normal motor strength and sensation in the lower extremities.

The emergency physician (EP) ordered X-rays of the thoracic and lumbar spine and a urinalysis. The films were interpreted by both the EP and radiologist as normal; the results of the urinalysis were also normal. The patient was diagnosed with a lower back strain secondary to the motor vehicle crash and was discharged home with an analgesic.

The next day, however, the patient began to complain of increased back pain and lower-extremity numbness and weakness. He was brought back to the same hospital ED where he was noted to have severe weakness of both lower extremities and decreased sensation to touch. Additional imaging was performed, which demonstrated a fracture of T11 with spinal cord impingement. He was taken to surgery, but unfortunately the injury was permanent, and the patient was left with lower-extremity paralysis and bowel and bladder incontinence. 

The plaintiff sued the EP and the radiologist for not properly interpreting the initial X-rays. The defendants denied liability, asserting the patient’s injury was a result of the collision and that nothing could have prevented it. According to a published account, the jury returned a verdict finding the EP to be 40% at fault and the radiologist 60% at fault.

Discussion

Emergency physicians frequently manage patients experiencing pain or injury following a motor vehicle crash. If the patient is complaining of neck or back pain, the prehospital providers will immobilize the patient with a rigid cervical collar (ie, if neck pain is present) and a long backboard if pain anywhere along the spine is present (ie, cervical, thoracic, or lumbar).

When the initial airway, breathing, circulation, and disability assessment for the trauma patient is performed and found to be normal, a secondary examination should be performed. Trauma patients with back pain should be log-rolled onto their side, with spinal immobilization followed by visual inspection and palpation/percussion of the midline of the thoracic and lumbar spine. The presence of midline tenderness suggests an acute injury and the need to keep the patient immobilized. Patients should be removed off the backboard and onto the gurney mattress while immobilizing the spine. The standard hospital mattress provides acceptable spinal support.¹

Historically, plain radiographs of the thoracic and lumbar spine have been the imaging test of choice in the initial evaluation of suspected traumatic spinal column injury. However, similar to cervical spine trauma, computed tomography (CT) is assuming a larger role in the evaluation of patients with suspected thoracic or lumbar spine injury. When thoracic and abdominal CT scans are performed to evaluate for possible chest or abdominal trauma, those images can be reformatted and used to reconstruct images of the thoracic and lumbar spine, significantly reducing radiation exposure.¹ While CT is the gold standard imaging study for evaluation of bony or ligamentous injury of the spine, magnetic resonance imaging (MRI) is the study of choice for patients with neurological deficits or suspected spinal cord injury.

This patient had a completely normal neurological examination at initial presentation, so there was no indication for an MRI. The bony injury to T11 must have been very subtle for both the EP and the radiologist to have missed it. Unfortunately, the jury appears to have used the standard of “perfection,” rather than the “reasonable and prudent physician” in judging that the injury should have been detected. This case serves as a reminder that EPs cannot rely on consulting specialists to consistently and reliably provide accurate information. Moreover, this case emphasizes the need to consider CT imaging of the spine in the evaluation of patients with severe back pain of traumatic origin when plain radiographs appear normal.

Hip-Reduction Problem

A 79-year-old man with left hip pain presented to the ED via EMS. The patient stated that when he had bent over to retrieve his dropped glasses, he experienced the immediate onset of left hip pain and fell to the floor. He was unable to get up on his own and called EMS. The patient had undergone total left hip replacement 1 month prior. At presentation, he complained only of severe pain in his left hip; he denied head injury, neck pain or stiffness, chest pain, or abdominal pain. His past medical history was significant for hypertension and type 2 diabetes mellitus. The patient had no known drug allergies.

On physical examination, he was mildly tachycardic. His vital signs were: heart rate, 102 beats/minute; blood pressure, 156/88 mm Hg; respiratory rate, 20 breaths/minutes; and temperature, afebrile. His pulse oximetry was 98% on room air. The HEENT, lung, heart, and abdominal examinations were all normal. Standing at the foot of the bed, the patient had obvious shortening, internal rotation, and adduction of the left leg. The left knee was without tenderness or swelling. The neurovascular examination of the left lower extremity was completely normal.

Plain radiographs of the pelvis and left hip ordered by the EP demonstrated a posterior hip dislocation with intact hardware. The EP consulted the patient’s orthopedic physician, and both agreed the EP should attempt to reduce the dislocation in the ED. Using conscious sedation, the EP was able to reduce the dislocation, but postreduction films demonstrated a new fracture requiring orthopedic surgery. Unfortunately, the patient had a very difficult recovery, ultimately resulting in death.

The patient’s estate sued the EP, stating he should have had the orthopedic physician reduce the dislocation. The defense argued that fracture is a known complication of reduction of a dislocated hip. A defense verdict was returned.

Discussion

Approximately 85% to 90% of hip dislocations are posterior; the remaining 10% are anterior. Posterior hip dislocations are a common complication following total hip-replacement surgery.¹ Hip dislocation is a true orthopedic and time-dependent emergency. The longer the hip remains dislocated, the more likely complications are to occur, including osteonecrosis of the femoral head, arthritic degeneration of the hip joint, and long-term neurological sequelae.² The treatment of posterior hip dislocation (without fracture) is closed reduction as quickly as possible, and preferably within 6 hours.³ As this case demonstrates, minimal forces can result in a hip dislocation following a total hip replacement. In healthy patients, however, significant forces (eg, high-speed motor vehicle crashes) are required to cause posterior hip dislocation.

Patients with a posterior hip dislocation will present in severe pain and an inability to ambulate. In most cases of posterior hip dislocation, the affected lower extremity will be visibly shortened, internally rotated, and adducted. The knee should always be examined for injury, as well as performance of a thorough neurovascular examination of the affected extremity.

Plain X-ray films will usually identify a posterior hip dislocation. On an anteroposterior pelvis X-ray, the femoral head will be seen outside and just superior to the acetabulum. Special attention should be made to the acetabulum to ensure a concomitant acetabular fracture is not missed.

Indications for closed reduction of a posterior hip dislocation include dislocation with or without neurological deficit and no associated fracture, or dislocation with an associated fracture if no neurological deficits are present.² An open traumatic hip dislocation should only be reduced in the operating room.

It is certainly within the purview of the EP to attempt a closed reduction for a posterior hip dislocation if no contraindications exist. The patient will need to be sedated (ie, procedural sedation, conscious sedation, or moderate sedation) for any chance of success at reduction. While it is beyond the scope of this article to review the various techniques used to reduce a posterior hip dislocation, one of the guiding principles is that after two or three unsuccessful attempts by the EP to reduce the dislocation, no further attempts should be made and orthopedic surgery services should be consulted. This is because the risk of complications increases as the number of failed attempts increase.

It is unclear how many attempts the EP made in this case. Fracture is a known complication when attempting reduction for a hip dislocation, be it an orthopedic surgeon or an EP. It was certainly appropriate for the EP in this case to attempt closed reduction, given the importance of timely reduction.

Traumatic Back Pain

An 84-year-old man with low-back pain following a motor vehicle crash was brought to the ED by emergency medical services (EMS). He had been the restrained driver, stopped at a traffic light, when he was struck from behind by a second vehicle.

In the ED, the patient only complained of low-back pain. He denied any radiation of pain or lower-extremity numbness or weakness. He also denied any head injury, loss of consciousness, neck pain, or abdominal pain. His past medical history was significant for hypertension, arthritis, and coronary artery disease.

On physical examination, the patient’s vital signs were normal. The head, eyes, ears, nose, and throat (HEENT) examination was also normal; specifically, there was no tenderness to palpation of the cervical spine in the posterior midline. Regarding the cardiopulmonary examination, auscultation of the lungs revealed clear, bilateral breath sounds; the heart examination was normal. The patient had a soft abdomen, without tenderness, guarding, or rebound. His pelvis was stable, but he did exhibit some tenderness on palpation of the lower-thoracic and upper-lumbar spine. The neurological examination revealed normal motor strength and sensation in the lower extremities.

The emergency physician (EP) ordered X-rays of the thoracic and lumbar spine and a urinalysis. The films were interpreted by both the EP and radiologist as normal; the results of the urinalysis were also normal. The patient was diagnosed with a lower back strain secondary to the motor vehicle crash and was discharged home with an analgesic.

The next day, however, the patient began to complain of increased back pain and lower-extremity numbness and weakness. He was brought back to the same hospital ED where he was noted to have severe weakness of both lower extremities and decreased sensation to touch. Additional imaging was performed, which demonstrated a fracture of T11 with spinal cord impingement. He was taken to surgery, but unfortunately the injury was permanent, and the patient was left with lower-extremity paralysis and bowel and bladder incontinence. 

The plaintiff sued the EP and the radiologist for not properly interpreting the initial X-rays. The defendants denied liability, asserting the patient’s injury was a result of the collision and that nothing could have prevented it. According to a published account, the jury returned a verdict finding the EP to be 40% at fault and the radiologist 60% at fault.

Discussion

Emergency physicians frequently manage patients experiencing pain or injury following a motor vehicle crash. If the patient is complaining of neck or back pain, the prehospital providers will immobilize the patient with a rigid cervical collar (ie, if neck pain is present) and a long backboard if pain anywhere along the spine is present (ie, cervical, thoracic, or lumbar).

When the initial airway, breathing, circulation, and disability assessment for the trauma patient is performed and found to be normal, a secondary examination should be performed. Trauma patients with back pain should be log-rolled onto their side, with spinal immobilization followed by visual inspection and palpation/percussion of the midline of the thoracic and lumbar spine. The presence of midline tenderness suggests an acute injury and the need to keep the patient immobilized. Patients should be removed off the backboard and onto the gurney mattress while immobilizing the spine. The standard hospital mattress provides acceptable spinal support.¹

Historically, plain radiographs of the thoracic and lumbar spine have been the imaging test of choice in the initial evaluation of suspected traumatic spinal column injury. However, similar to cervical spine trauma, computed tomography (CT) is assuming a larger role in the evaluation of patients with suspected thoracic or lumbar spine injury. When thoracic and abdominal CT scans are performed to evaluate for possible chest or abdominal trauma, those images can be reformatted and used to reconstruct images of the thoracic and lumbar spine, significantly reducing radiation exposure.¹ While CT is the gold standard imaging study for evaluation of bony or ligamentous injury of the spine, magnetic resonance imaging (MRI) is the study of choice for patients with neurological deficits or suspected spinal cord injury.

This patient had a completely normal neurological examination at initial presentation, so there was no indication for an MRI. The bony injury to T11 must have been very subtle for both the EP and the radiologist to have missed it. Unfortunately, the jury appears to have used the standard of “perfection,” rather than the “reasonable and prudent physician” in judging that the injury should have been detected. This case serves as a reminder that EPs cannot rely on consulting specialists to consistently and reliably provide accurate information. Moreover, this case emphasizes the need to consider CT imaging of the spine in the evaluation of patients with severe back pain of traumatic origin when plain radiographs appear normal.

Hip-Reduction Problem

A 79-year-old man with left hip pain presented to the ED via EMS. The patient stated that when he had bent over to retrieve his dropped glasses, he experienced the immediate onset of left hip pain and fell to the floor. He was unable to get up on his own and called EMS. The patient had undergone total left hip replacement 1 month prior. At presentation, he complained only of severe pain in his left hip; he denied head injury, neck pain or stiffness, chest pain, or abdominal pain. His past medical history was significant for hypertension and type 2 diabetes mellitus. The patient had no known drug allergies.

On physical examination, he was mildly tachycardic. His vital signs were: heart rate, 102 beats/minute; blood pressure, 156/88 mm Hg; respiratory rate, 20 breaths/minutes; and temperature, afebrile. His pulse oximetry was 98% on room air. The HEENT, lung, heart, and abdominal examinations were all normal. Standing at the foot of the bed, the patient had obvious shortening, internal rotation, and adduction of the left leg. The left knee was without tenderness or swelling. The neurovascular examination of the left lower extremity was completely normal.

Plain radiographs of the pelvis and left hip ordered by the EP demonstrated a posterior hip dislocation with intact hardware. The EP consulted the patient’s orthopedic physician, and both agreed the EP should attempt to reduce the dislocation in the ED. Using conscious sedation, the EP was able to reduce the dislocation, but postreduction films demonstrated a new fracture requiring orthopedic surgery. Unfortunately, the patient had a very difficult recovery, ultimately resulting in death.

The patient’s estate sued the EP, stating he should have had the orthopedic physician reduce the dislocation. The defense argued that fracture is a known complication of reduction of a dislocated hip. A defense verdict was returned.

Discussion

Approximately 85% to 90% of hip dislocations are posterior; the remaining 10% are anterior. Posterior hip dislocations are a common complication following total hip-replacement surgery.¹ Hip dislocation is a true orthopedic and time-dependent emergency. The longer the hip remains dislocated, the more likely complications are to occur, including osteonecrosis of the femoral head, arthritic degeneration of the hip joint, and long-term neurological sequelae.² The treatment of posterior hip dislocation (without fracture) is closed reduction as quickly as possible, and preferably within 6 hours.³ As this case demonstrates, minimal forces can result in a hip dislocation following a total hip replacement. In healthy patients, however, significant forces (eg, high-speed motor vehicle crashes) are required to cause posterior hip dislocation.

Patients with a posterior hip dislocation will present in severe pain and an inability to ambulate. In most cases of posterior hip dislocation, the affected lower extremity will be visibly shortened, internally rotated, and adducted. The knee should always be examined for injury, as well as performance of a thorough neurovascular examination of the affected extremity.

Plain X-ray films will usually identify a posterior hip dislocation. On an anteroposterior pelvis X-ray, the femoral head will be seen outside and just superior to the acetabulum. Special attention should be made to the acetabulum to ensure a concomitant acetabular fracture is not missed.

Indications for closed reduction of a posterior hip dislocation include dislocation with or without neurological deficit and no associated fracture, or dislocation with an associated fracture if no neurological deficits are present.² An open traumatic hip dislocation should only be reduced in the operating room.

It is certainly within the purview of the EP to attempt a closed reduction for a posterior hip dislocation if no contraindications exist. The patient will need to be sedated (ie, procedural sedation, conscious sedation, or moderate sedation) for any chance of success at reduction. While it is beyond the scope of this article to review the various techniques used to reduce a posterior hip dislocation, one of the guiding principles is that after two or three unsuccessful attempts by the EP to reduce the dislocation, no further attempts should be made and orthopedic surgery services should be consulted. This is because the risk of complications increases as the number of failed attempts increase.

It is unclear how many attempts the EP made in this case. Fracture is a known complication when attempting reduction for a hip dislocation, be it an orthopedic surgeon or an EP. It was certainly appropriate for the EP in this case to attempt closed reduction, given the importance of timely reduction.

Question: Developments in medical tort reform include:

A. Continued constitutional challenges to caps on damages.

B. An emphasis on patient safety.

C. Hillary Clinton’s Senate bill.

D. Linking medical tort reform to error reduction.

E. All of the above.

Answer: E. Recent years have witnessed a stabilizing environment for medical liability, although insurance premiums continue to vary greatly by specialty and geographic location.

Recent statistics from the American Medical Association show that 2014 ob.gyn. insurance rates range from less than $50,000 in some areas of California to a high of $215,000 in Nassau and Suffolk counties in New York. The highest average expense in 2013, around a quarter of a million dollars, was for those claims that resulted in plaintiff verdicts, while defendant verdicts were substantially lower and averaged $140,000.

As in the past, most claims were dropped, dismissed, or withdrawn. About one-quarter of claims were settled, with only 2% decided by an alternative dispute resolution. Less than 8% were decided by trial verdict, with the vast majority won by the defendant.

The plaintiff bar continues to mount constitutional challenges to caps on damages. The California Supreme Court had previously ruled that reforms under California’s historic Medical Injury Compensation Reform Act (MICRA)¹, which limits noneconomic recovery to $250,000, are constitutional, because they are rationally related to the legitimate legislative goal of reducing medical costs.

However, the statute has again come under challenge, only to be reaffirmed by a California state appeals court. In November 2014, California voters rejected Proposition 46, which sought to increase the cap from $250,000 to $1.1 million.

Texas, another pro-reform state, sides with California, and Mississippi also ruled that its damage cap is constitutional. However, Florida and Oklahoma recently joined jurisdictions such as Georgia, Illinois, and Missouri in ruling that damage caps are unconstitutional.

Asserting that the current health care liability system has been an inefficient and sometimes ineffective mechanism for initiating or resolving claims of medical error, medical negligence, or malpractice, then-U.S. senators Hillary Clinton (D-N.Y.) and Barack Obama (D-Ill.) in 2005 jointly sponsored legislation (S. 1784) to establish a National Medical Error Disclosure and Compensation Program (National MEDiC Act). Although the bill was killed in Senate committee, its key provisions were subsequently published in the New England Journal of Medicine (2006;354:2205-8).

The senators noted that the liability system has failed to the extent that only one medical malpractice claim is filed for every eight medical injuries, that it takes 4-8 years to resolve a claim, and that “solutions to the patient safety, litigation, and medical liability insurance problems have been elusive.”

Accordingly, the bill’s purpose was to promote the confidential disclosure to patients of medical errors in an effort to improve patient-safety systems. At the time of disclosure, there would be negotiations for compensation and proposals to prevent a recurrence of the problem that led to the patient’s injury. However, the patient would retain the right to counsel during negotiations, as well as access to the courts if no agreement were reached. The bill was entirely silent on traditional tort reform measures.

Nearly 4 decades earlier, a no-fault proposal by Professor Jeffrey O’Connell made some of these points, but with sharper focus and specificity, especially regarding damages.²

In marked contrast to the Clinton-Obama bill, his proposal gave the medical provider the exclusive option to tender payment, which would completely foreclose future tort action by the victim. Compensation benefits included net economic loss such as 100% of lost wages, replacement service loss, medical treatment expenses, and reasonable attorney’s fees. But noneconomic losses, such as pain and suffering, were not reimbursable, and payment was net of any benefits from collateral sources.

This proposal elegantly combined efficiency and fairness, and would have ameliorated the financial and emotional toll that comes with litigating injuries arising out of health care. Legislation in the House of Representatives, the Alternative Medical Liability Act (H.R. 5400), incorporated many of these features, and came before the 98th U.S. Congress in 1984. It, too, died in committee.

There may be something to the current trend toward pairing tort reform with error reduction. Thoughtful observers point to “disclosure and offer” programs such as the one at the Lexington (Ky.) Veterans Affairs Medical Center, which boasts average settlements of approximately $15,000 per claim – compared with more than $98,000 at other VA institutions. Its policy has also decreased the average duration of cases, previously 2-4 years, to 2-4 months, as well as reduced costs for legal defense.

Likewise, the program at the University of Michigan Health System has reduced both the frequency and severity of claims, duration of cases, and litigation costs. Aware of these developments, some private insurers, such as the COPIC Insurance Company in Colorado, are adopting a similar approach.

In its updated 2014 tort reform position paper, the American College of Physicians continues to endorse caps on noneconomic and punitive damages, as well as other tort reform measures.

However, it now acknowledges that “improving patient safety and preventing errors must be at the fore of the medical liability reform discussion.” The ACP correctly asserts that “emphasizing patient safety, promoting a culture of quality improvement and coordinated care, and training physicians in best practices to avoid errors and reduce risk will prevent harm and reduce the waste associated with defensive medicine.”

This hybrid approach combining traditional tort reforms with a renewed attention to patient safety through medical error reduction may yet yield additional practical benefits.

Here, the experience in anesthesiology bears recounting: Its dramatic progress in risk management has cut patient death rate from 1 in 5,000 to 1 in 200,000 to 300,000 in the space of 20 years, and this has been associated with a concurrent 37% fall in insurance premiums.

References

1. Medical Injury Compensation Reform Act of 1975, Cal. Civ. Proc. Code § 3333.2 (West 1982).

2. O’Connell, J. No-Fault Insurance for Injuries Arising from Medical Treatment: A Proposal for Elective Coverage. Emory L. J. 1975;24:21.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii. Currently, he directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: Developments in medical tort reform include:

A. Continued constitutional challenges to caps on damages.

B. An emphasis on patient safety.

C. Hillary Clinton’s Senate bill.

D. Linking medical tort reform to error reduction.

E. All of the above.

Answer: E. Recent years have witnessed a stabilizing environment for medical liability, although insurance premiums continue to vary greatly by specialty and geographic location.

Recent statistics from the American Medical Association show that 2014 ob.gyn. insurance rates range from less than $50,000 in some areas of California to a high of $215,000 in Nassau and Suffolk counties in New York. The highest average expense in 2013, around a quarter of a million dollars, was for those claims that resulted in plaintiff verdicts, while defendant verdicts were substantially lower and averaged $140,000.

As in the past, most claims were dropped, dismissed, or withdrawn. About one-quarter of claims were settled, with only 2% decided by an alternative dispute resolution. Less than 8% were decided by trial verdict, with the vast majority won by the defendant.

The plaintiff bar continues to mount constitutional challenges to caps on damages. The California Supreme Court had previously ruled that reforms under California’s historic Medical Injury Compensation Reform Act (MICRA)¹, which limits noneconomic recovery to $250,000, are constitutional, because they are rationally related to the legitimate legislative goal of reducing medical costs.

However, the statute has again come under challenge, only to be reaffirmed by a California state appeals court. In November 2014, California voters rejected Proposition 46, which sought to increase the cap from $250,000 to $1.1 million.

Texas, another pro-reform state, sides with California, and Mississippi also ruled that its damage cap is constitutional. However, Florida and Oklahoma recently joined jurisdictions such as Georgia, Illinois, and Missouri in ruling that damage caps are unconstitutional.

Asserting that the current health care liability system has been an inefficient and sometimes ineffective mechanism for initiating or resolving claims of medical error, medical negligence, or malpractice, then-U.S. senators Hillary Clinton (D-N.Y.) and Barack Obama (D-Ill.) in 2005 jointly sponsored legislation (S. 1784) to establish a National Medical Error Disclosure and Compensation Program (National MEDiC Act). Although the bill was killed in Senate committee, its key provisions were subsequently published in the New England Journal of Medicine (2006;354:2205-8).

The senators noted that the liability system has failed to the extent that only one medical malpractice claim is filed for every eight medical injuries, that it takes 4-8 years to resolve a claim, and that “solutions to the patient safety, litigation, and medical liability insurance problems have been elusive.”

Accordingly, the bill’s purpose was to promote the confidential disclosure to patients of medical errors in an effort to improve patient-safety systems. At the time of disclosure, there would be negotiations for compensation and proposals to prevent a recurrence of the problem that led to the patient’s injury. However, the patient would retain the right to counsel during negotiations, as well as access to the courts if no agreement were reached. The bill was entirely silent on traditional tort reform measures.

Nearly 4 decades earlier, a no-fault proposal by Professor Jeffrey O’Connell made some of these points, but with sharper focus and specificity, especially regarding damages.²

In marked contrast to the Clinton-Obama bill, his proposal gave the medical provider the exclusive option to tender payment, which would completely foreclose future tort action by the victim. Compensation benefits included net economic loss such as 100% of lost wages, replacement service loss, medical treatment expenses, and reasonable attorney’s fees. But noneconomic losses, such as pain and suffering, were not reimbursable, and payment was net of any benefits from collateral sources.

This proposal elegantly combined efficiency and fairness, and would have ameliorated the financial and emotional toll that comes with litigating injuries arising out of health care. Legislation in the House of Representatives, the Alternative Medical Liability Act (H.R. 5400), incorporated many of these features, and came before the 98th U.S. Congress in 1984. It, too, died in committee.

There may be something to the current trend toward pairing tort reform with error reduction. Thoughtful observers point to “disclosure and offer” programs such as the one at the Lexington (Ky.) Veterans Affairs Medical Center, which boasts average settlements of approximately $15,000 per claim – compared with more than $98,000 at other VA institutions. Its policy has also decreased the average duration of cases, previously 2-4 years, to 2-4 months, as well as reduced costs for legal defense.

Likewise, the program at the University of Michigan Health System has reduced both the frequency and severity of claims, duration of cases, and litigation costs. Aware of these developments, some private insurers, such as the COPIC Insurance Company in Colorado, are adopting a similar approach.

In its updated 2014 tort reform position paper, the American College of Physicians continues to endorse caps on noneconomic and punitive damages, as well as other tort reform measures.

However, it now acknowledges that “improving patient safety and preventing errors must be at the fore of the medical liability reform discussion.” The ACP correctly asserts that “emphasizing patient safety, promoting a culture of quality improvement and coordinated care, and training physicians in best practices to avoid errors and reduce risk will prevent harm and reduce the waste associated with defensive medicine.”

This hybrid approach combining traditional tort reforms with a renewed attention to patient safety through medical error reduction may yet yield additional practical benefits.

Here, the experience in anesthesiology bears recounting: Its dramatic progress in risk management has cut patient death rate from 1 in 5,000 to 1 in 200,000 to 300,000 in the space of 20 years, and this has been associated with a concurrent 37% fall in insurance premiums.

References

1. Medical Injury Compensation Reform Act of 1975, Cal. Civ. Proc. Code § 3333.2 (West 1982).

2. O’Connell, J. No-Fault Insurance for Injuries Arising from Medical Treatment: A Proposal for Elective Coverage. Emory L. J. 1975;24:21.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii. Currently, he directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: Developments in medical tort reform include:

A. Continued constitutional challenges to caps on damages.

B. An emphasis on patient safety.

C. Hillary Clinton’s Senate bill.

D. Linking medical tort reform to error reduction.

E. All of the above.

Answer: E. Recent years have witnessed a stabilizing environment for medical liability, although insurance premiums continue to vary greatly by specialty and geographic location.

Recent statistics from the American Medical Association show that 2014 ob.gyn. insurance rates range from less than $50,000 in some areas of California to a high of $215,000 in Nassau and Suffolk counties in New York. The highest average expense in 2013, around a quarter of a million dollars, was for those claims that resulted in plaintiff verdicts, while defendant verdicts were substantially lower and averaged $140,000.

As in the past, most claims were dropped, dismissed, or withdrawn. About one-quarter of claims were settled, with only 2% decided by an alternative dispute resolution. Less than 8% were decided by trial verdict, with the vast majority won by the defendant.

The plaintiff bar continues to mount constitutional challenges to caps on damages. The California Supreme Court had previously ruled that reforms under California’s historic Medical Injury Compensation Reform Act (MICRA)¹, which limits noneconomic recovery to $250,000, are constitutional, because they are rationally related to the legitimate legislative goal of reducing medical costs.

However, the statute has again come under challenge, only to be reaffirmed by a California state appeals court. In November 2014, California voters rejected Proposition 46, which sought to increase the cap from $250,000 to $1.1 million.

Texas, another pro-reform state, sides with California, and Mississippi also ruled that its damage cap is constitutional. However, Florida and Oklahoma recently joined jurisdictions such as Georgia, Illinois, and Missouri in ruling that damage caps are unconstitutional.

Asserting that the current health care liability system has been an inefficient and sometimes ineffective mechanism for initiating or resolving claims of medical error, medical negligence, or malpractice, then-U.S. senators Hillary Clinton (D-N.Y.) and Barack Obama (D-Ill.) in 2005 jointly sponsored legislation (S. 1784) to establish a National Medical Error Disclosure and Compensation Program (National MEDiC Act). Although the bill was killed in Senate committee, its key provisions were subsequently published in the New England Journal of Medicine (2006;354:2205-8).

The senators noted that the liability system has failed to the extent that only one medical malpractice claim is filed for every eight medical injuries, that it takes 4-8 years to resolve a claim, and that “solutions to the patient safety, litigation, and medical liability insurance problems have been elusive.”

Accordingly, the bill’s purpose was to promote the confidential disclosure to patients of medical errors in an effort to improve patient-safety systems. At the time of disclosure, there would be negotiations for compensation and proposals to prevent a recurrence of the problem that led to the patient’s injury. However, the patient would retain the right to counsel during negotiations, as well as access to the courts if no agreement were reached. The bill was entirely silent on traditional tort reform measures.

Nearly 4 decades earlier, a no-fault proposal by Professor Jeffrey O’Connell made some of these points, but with sharper focus and specificity, especially regarding damages.²

In marked contrast to the Clinton-Obama bill, his proposal gave the medical provider the exclusive option to tender payment, which would completely foreclose future tort action by the victim. Compensation benefits included net economic loss such as 100% of lost wages, replacement service loss, medical treatment expenses, and reasonable attorney’s fees. But noneconomic losses, such as pain and suffering, were not reimbursable, and payment was net of any benefits from collateral sources.

This proposal elegantly combined efficiency and fairness, and would have ameliorated the financial and emotional toll that comes with litigating injuries arising out of health care. Legislation in the House of Representatives, the Alternative Medical Liability Act (H.R. 5400), incorporated many of these features, and came before the 98th U.S. Congress in 1984. It, too, died in committee.

There may be something to the current trend toward pairing tort reform with error reduction. Thoughtful observers point to “disclosure and offer” programs such as the one at the Lexington (Ky.) Veterans Affairs Medical Center, which boasts average settlements of approximately $15,000 per claim – compared with more than $98,000 at other VA institutions. Its policy has also decreased the average duration of cases, previously 2-4 years, to 2-4 months, as well as reduced costs for legal defense.

Likewise, the program at the University of Michigan Health System has reduced both the frequency and severity of claims, duration of cases, and litigation costs. Aware of these developments, some private insurers, such as the COPIC Insurance Company in Colorado, are adopting a similar approach.

In its updated 2014 tort reform position paper, the American College of Physicians continues to endorse caps on noneconomic and punitive damages, as well as other tort reform measures.

However, it now acknowledges that “improving patient safety and preventing errors must be at the fore of the medical liability reform discussion.” The ACP correctly asserts that “emphasizing patient safety, promoting a culture of quality improvement and coordinated care, and training physicians in best practices to avoid errors and reduce risk will prevent harm and reduce the waste associated with defensive medicine.”

This hybrid approach combining traditional tort reforms with a renewed attention to patient safety through medical error reduction may yet yield additional practical benefits.

Here, the experience in anesthesiology bears recounting: Its dramatic progress in risk management has cut patient death rate from 1 in 5,000 to 1 in 200,000 to 300,000 in the space of 20 years, and this has been associated with a concurrent 37% fall in insurance premiums.

References

1. Medical Injury Compensation Reform Act of 1975, Cal. Civ. Proc. Code § 3333.2 (West 1982).

2. O’Connell, J. No-Fault Insurance for Injuries Arising from Medical Treatment: A Proposal for Elective Coverage. Emory L. J. 1975;24:21.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii. Currently, he directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: Charges of homicide have been successfully brought against doctors in the following situations except:

A. Withholding life-sustaining treatment.

B. Euthanasia.

C. Negligent treatment of a patient.

D. Overprescription of controlled substances.

Answer: A. Homicideis any act that causes the death of a human being with criminal intent and without legal justification. It comprises several crimes of varying severity, with murder being the most serious (requiring “malice aforethought”). Depending on the intent of the perpetrator and/or the presence of mitigating/aggravating circumstances, jurisdictions have subdivided homicide into categories such as first- and second-degree murder, voluntary and involuntary manslaughter, negligent homicide, and others.

Discontinuing futile medical treatment that ends with patient demise raises the specter of criminal prosecution for homicide. However, prosecution of doctors under such circumstances has failed. The seminal case is Barber v. Superior Court (147 Cal. App. 3d 1006 (1983)), in which the state of California brought murder charges against two doctors for discontinuing intravenous fluids and nutrition in a comatose patient.

The patient, a 55-year-old security guard, sustained a cardiopulmonary arrest following surgery for intestinal obstruction. Irreversible brain damage resulted, leaving him in a vegetative state. His family allegedly requested that life support measures and intravenous fluids be discontinued, to which the doctors complied, and the patient died 6 days later.

After a preliminary pretrial hearing, the magistrate dismissed the charges; but a trial court reinstated them. The court of appeals, however, viewed the defendant’s conduct in discontinuing intravenous fluids as an omission rather than an affirmative action, and found that a physician has no duty to continue treatment once it is proven to be ineffective.

The appeals court recognized that “a physician is authorized under the standards of medical practice to discontinue a form of therapy which in his medical judgment is useless. … If the treating physicians have determined that continued use of a respirator is useless, then they may decide to discontinue it without fear of civil or criminal liability.”

In rejecting the distinction between ordinary and extraordinary care, the court dismissed the prosecutor’s contention that unlike the respirator, fluids and nutrition represented ordinary care and therefore should never be withheld.

It concluded that “the petitioners’ omission to continue treatment under the circumstances, though intentional and with knowledge that the patient would die, was not an unlawful failure to perform a legal duty.” And because no criminal liability attaches for failure to act (i.e., an omission) unless there is a legal duty to act affirmatively, it issued a writ of prohibition restraining the lower court from taking any further action on the matter.

The U.S. Supreme Court has since validated the distinction between “letting die” and an affirmative action taken with the intention to cause death, such as the administration of a lethal injection. The former is ethical and legal, conforming to medical norms, while the latter amounts to murder (Vacco v. Quill (117 S. Ct. 2293 (1997)).

With these developments, physicians therefore need not worry about criminal prosecution for carrying out Barber-like noneuthanasia, end-of-life actions that result in the death of their patients.

On the other hand, those who act directly to end the life of a patient, even one who freely requests death, may face criminal prosecution.

The most notorious example is that of retired Michigan pathologist Dr. Jack Kevorkian, who was found guilty of the second-degree murder of Thomas Youk, a 52-year-old race-car driver with terminal Lou Gehrig’s disease. Dr. Kevorkian injected a lethal mixture of Seconal, Anectine, and potassium chloride to end the patient’s life.

At trial, Dr. Kevorkian dismissed his lawyer and served ineffectively in his own defense, never taking the witness stand. Found guilty by a jury and sentenced to 10-25 years in prison, he served just more than 8 years until 2007, when he was released for good behavior. Previous charges by the state of Michigan against Dr. Kevorkian for assisting in the suicide of some 130 patients had proven unsuccessful.

This case spawned a nationwide debate on physician-directed deaths, with a few states now legalizing physician-assisted suicide, although euthanasia remains illegal throughout the nation.

In general, the remedy sought in a medical wrongful death case lies in a malpractice civil lawsuit against the negligent doctor. Sometimes, the plaintiff may assert that there was gross negligence where the conduct was particularly blameworthy, and if proven, the jury may award punitive damages.

Rarely, however, does the level of misconduct rise to that of criminal negligence. Here, the burden of proof for a conviction requires evidence beyond reasonable doubt, rather than the lower “more probable than not” evidentiary standard required in a civil lawsuit.

However, in cases where the physician’s conduct has markedly deviated from the standard of care, doctors have been successfully prosecuted for their “criminal” conduct.

For example, in an English case, an anesthesiologist was convicted of manslaughter in the death of a patient undergoing surgery for a detached retina. During surgery, the patient’s ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes, leading to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.

The tragic death of pop star Michael Jackson in 2009 is another example. Dr. Conrad Murray, a cardiologist who was Jackson’s personal physician, had used the surgical anesthetic propofol to treat Jackson’s insomnia in a bedroom setting without monitoring or resuscitation equipment. Concurrent use of the sedative lorazepam exacerbated the effect of propofol. The prosecution characterized Dr. Murray’s conduct as “egregious, unethical, and unconscionable,” which violated medical standards and amounted to criminal negligence. He was found guilty of involuntary manslaughter, and the state sentenced him to a 4-year prison term.

A new trend appears to be developing toward prosecuting doctors whose overprescription of controlled substances results in patient deaths.

According to a recent news report, New York for the first time convicted a doctor of manslaughter in the overdose deaths of patients from oxycodone and Xanax.¹ Some of the patients were reportedly prescribed as many as 500-800 pills over a 5-6 week period. Dr. Stan Li, an anesthesiologist and pain management specialist, allegedly saw up to 90 patients a day in his Queens, N.Y., weekend storefront clinic, charging them on a per-prescription basis. In his defense, Dr. Li claimed that he was simply trying to help suffering people who misused medications and who misled him (“tough patients and good liars”).

Meanwhile, a similar scenario played out in Oklahoma.² There, Dr. William Valuck, a pain management doctor, pleaded guilty to eight counts of second-degree murder in connection with several drug overdose deaths. He entered into a plea bargain with Oklahoma prosecutors and will serve 8 years in prison. Dr. Valuck had reportedly prescribed more controlled drugs than any other physician in the state of Oklahoma, which included hydrocodone, oxycodone, alprazolam, Valium, and Soma, sometimes as many as 600 pills at a time. He allegedly accepted only cash payment for the office visits, and review of his patient files revealed inadequate assessment of patient complaints or physical findings to justify the prescriptions.

Most physicians are unlikely to ever face the specter of criminal prosecution based on their medical performance. Only in the most egregious of circumstances have physicians been successfully prosecuted for homicide.

As requests for physicians to withhold or withdraw life-sustaining treatments grow, physicians may find themselves questioning what acts or omissions they may legally perform. Unless the legal landscape changes, however, it appears that the forgoing of life-sustaining treatments in the typical clinical context will not subject physicians to criminal prosecution.

References

1. “NY doctor convicted of manslaughter in 2 overdoses,” July 18, 2014 (http://bigstory.ap.org/article/ny-doctor-convicted-2-patients-overdose-deaths).

2. “Ex-doctor pleads guilty in overdose deaths,” Aug. 13, 2014 (www.usatoday.com/story/news/nation/2014/08/13/ex-doctor-guilty-deaths/14022735).

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: Charges of homicide have been successfully brought against doctors in the following situations except:

A. Withholding life-sustaining treatment.

B. Euthanasia.

C. Negligent treatment of a patient.

D. Overprescription of controlled substances.

Answer: A. Homicideis any act that causes the death of a human being with criminal intent and without legal justification. It comprises several crimes of varying severity, with murder being the most serious (requiring “malice aforethought”). Depending on the intent of the perpetrator and/or the presence of mitigating/aggravating circumstances, jurisdictions have subdivided homicide into categories such as first- and second-degree murder, voluntary and involuntary manslaughter, negligent homicide, and others.

Discontinuing futile medical treatment that ends with patient demise raises the specter of criminal prosecution for homicide. However, prosecution of doctors under such circumstances has failed. The seminal case is Barber v. Superior Court (147 Cal. App. 3d 1006 (1983)), in which the state of California brought murder charges against two doctors for discontinuing intravenous fluids and nutrition in a comatose patient.

The patient, a 55-year-old security guard, sustained a cardiopulmonary arrest following surgery for intestinal obstruction. Irreversible brain damage resulted, leaving him in a vegetative state. His family allegedly requested that life support measures and intravenous fluids be discontinued, to which the doctors complied, and the patient died 6 days later.

After a preliminary pretrial hearing, the magistrate dismissed the charges; but a trial court reinstated them. The court of appeals, however, viewed the defendant’s conduct in discontinuing intravenous fluids as an omission rather than an affirmative action, and found that a physician has no duty to continue treatment once it is proven to be ineffective.

The appeals court recognized that “a physician is authorized under the standards of medical practice to discontinue a form of therapy which in his medical judgment is useless. … If the treating physicians have determined that continued use of a respirator is useless, then they may decide to discontinue it without fear of civil or criminal liability.”

In rejecting the distinction between ordinary and extraordinary care, the court dismissed the prosecutor’s contention that unlike the respirator, fluids and nutrition represented ordinary care and therefore should never be withheld.

It concluded that “the petitioners’ omission to continue treatment under the circumstances, though intentional and with knowledge that the patient would die, was not an unlawful failure to perform a legal duty.” And because no criminal liability attaches for failure to act (i.e., an omission) unless there is a legal duty to act affirmatively, it issued a writ of prohibition restraining the lower court from taking any further action on the matter.

The U.S. Supreme Court has since validated the distinction between “letting die” and an affirmative action taken with the intention to cause death, such as the administration of a lethal injection. The former is ethical and legal, conforming to medical norms, while the latter amounts to murder (Vacco v. Quill (117 S. Ct. 2293 (1997)).

With these developments, physicians therefore need not worry about criminal prosecution for carrying out Barber-like noneuthanasia, end-of-life actions that result in the death of their patients.

On the other hand, those who act directly to end the life of a patient, even one who freely requests death, may face criminal prosecution.

The most notorious example is that of retired Michigan pathologist Dr. Jack Kevorkian, who was found guilty of the second-degree murder of Thomas Youk, a 52-year-old race-car driver with terminal Lou Gehrig’s disease. Dr. Kevorkian injected a lethal mixture of Seconal, Anectine, and potassium chloride to end the patient’s life.

At trial, Dr. Kevorkian dismissed his lawyer and served ineffectively in his own defense, never taking the witness stand. Found guilty by a jury and sentenced to 10-25 years in prison, he served just more than 8 years until 2007, when he was released for good behavior. Previous charges by the state of Michigan against Dr. Kevorkian for assisting in the suicide of some 130 patients had proven unsuccessful.

This case spawned a nationwide debate on physician-directed deaths, with a few states now legalizing physician-assisted suicide, although euthanasia remains illegal throughout the nation.

In general, the remedy sought in a medical wrongful death case lies in a malpractice civil lawsuit against the negligent doctor. Sometimes, the plaintiff may assert that there was gross negligence where the conduct was particularly blameworthy, and if proven, the jury may award punitive damages.

Rarely, however, does the level of misconduct rise to that of criminal negligence. Here, the burden of proof for a conviction requires evidence beyond reasonable doubt, rather than the lower “more probable than not” evidentiary standard required in a civil lawsuit.

However, in cases where the physician’s conduct has markedly deviated from the standard of care, doctors have been successfully prosecuted for their “criminal” conduct.

For example, in an English case, an anesthesiologist was convicted of manslaughter in the death of a patient undergoing surgery for a detached retina. During surgery, the patient’s ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes, leading to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.

The tragic death of pop star Michael Jackson in 2009 is another example. Dr. Conrad Murray, a cardiologist who was Jackson’s personal physician, had used the surgical anesthetic propofol to treat Jackson’s insomnia in a bedroom setting without monitoring or resuscitation equipment. Concurrent use of the sedative lorazepam exacerbated the effect of propofol. The prosecution characterized Dr. Murray’s conduct as “egregious, unethical, and unconscionable,” which violated medical standards and amounted to criminal negligence. He was found guilty of involuntary manslaughter, and the state sentenced him to a 4-year prison term.

A new trend appears to be developing toward prosecuting doctors whose overprescription of controlled substances results in patient deaths.

According to a recent news report, New York for the first time convicted a doctor of manslaughter in the overdose deaths of patients from oxycodone and Xanax.¹ Some of the patients were reportedly prescribed as many as 500-800 pills over a 5-6 week period. Dr. Stan Li, an anesthesiologist and pain management specialist, allegedly saw up to 90 patients a day in his Queens, N.Y., weekend storefront clinic, charging them on a per-prescription basis. In his defense, Dr. Li claimed that he was simply trying to help suffering people who misused medications and who misled him (“tough patients and good liars”).

Meanwhile, a similar scenario played out in Oklahoma.² There, Dr. William Valuck, a pain management doctor, pleaded guilty to eight counts of second-degree murder in connection with several drug overdose deaths. He entered into a plea bargain with Oklahoma prosecutors and will serve 8 years in prison. Dr. Valuck had reportedly prescribed more controlled drugs than any other physician in the state of Oklahoma, which included hydrocodone, oxycodone, alprazolam, Valium, and Soma, sometimes as many as 600 pills at a time. He allegedly accepted only cash payment for the office visits, and review of his patient files revealed inadequate assessment of patient complaints or physical findings to justify the prescriptions.

Most physicians are unlikely to ever face the specter of criminal prosecution based on their medical performance. Only in the most egregious of circumstances have physicians been successfully prosecuted for homicide.

As requests for physicians to withhold or withdraw life-sustaining treatments grow, physicians may find themselves questioning what acts or omissions they may legally perform. Unless the legal landscape changes, however, it appears that the forgoing of life-sustaining treatments in the typical clinical context will not subject physicians to criminal prosecution.

References

1. “NY doctor convicted of manslaughter in 2 overdoses,” July 18, 2014 (http://bigstory.ap.org/article/ny-doctor-convicted-2-patients-overdose-deaths).

2. “Ex-doctor pleads guilty in overdose deaths,” Aug. 13, 2014 (www.usatoday.com/story/news/nation/2014/08/13/ex-doctor-guilty-deaths/14022735).

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: Charges of homicide have been successfully brought against doctors in the following situations except:

A. Withholding life-sustaining treatment.

B. Euthanasia.

C. Negligent treatment of a patient.

D. Overprescription of controlled substances.

Answer: A. Homicideis any act that causes the death of a human being with criminal intent and without legal justification. It comprises several crimes of varying severity, with murder being the most serious (requiring “malice aforethought”). Depending on the intent of the perpetrator and/or the presence of mitigating/aggravating circumstances, jurisdictions have subdivided homicide into categories such as first- and second-degree murder, voluntary and involuntary manslaughter, negligent homicide, and others.

Discontinuing futile medical treatment that ends with patient demise raises the specter of criminal prosecution for homicide. However, prosecution of doctors under such circumstances has failed. The seminal case is Barber v. Superior Court (147 Cal. App. 3d 1006 (1983)), in which the state of California brought murder charges against two doctors for discontinuing intravenous fluids and nutrition in a comatose patient.

The patient, a 55-year-old security guard, sustained a cardiopulmonary arrest following surgery for intestinal obstruction. Irreversible brain damage resulted, leaving him in a vegetative state. His family allegedly requested that life support measures and intravenous fluids be discontinued, to which the doctors complied, and the patient died 6 days later.

After a preliminary pretrial hearing, the magistrate dismissed the charges; but a trial court reinstated them. The court of appeals, however, viewed the defendant’s conduct in discontinuing intravenous fluids as an omission rather than an affirmative action, and found that a physician has no duty to continue treatment once it is proven to be ineffective.

The appeals court recognized that “a physician is authorized under the standards of medical practice to discontinue a form of therapy which in his medical judgment is useless. … If the treating physicians have determined that continued use of a respirator is useless, then they may decide to discontinue it without fear of civil or criminal liability.”

In rejecting the distinction between ordinary and extraordinary care, the court dismissed the prosecutor’s contention that unlike the respirator, fluids and nutrition represented ordinary care and therefore should never be withheld.

It concluded that “the petitioners’ omission to continue treatment under the circumstances, though intentional and with knowledge that the patient would die, was not an unlawful failure to perform a legal duty.” And because no criminal liability attaches for failure to act (i.e., an omission) unless there is a legal duty to act affirmatively, it issued a writ of prohibition restraining the lower court from taking any further action on the matter.

The U.S. Supreme Court has since validated the distinction between “letting die” and an affirmative action taken with the intention to cause death, such as the administration of a lethal injection. The former is ethical and legal, conforming to medical norms, while the latter amounts to murder (Vacco v. Quill (117 S. Ct. 2293 (1997)).

With these developments, physicians therefore need not worry about criminal prosecution for carrying out Barber-like noneuthanasia, end-of-life actions that result in the death of their patients.

On the other hand, those who act directly to end the life of a patient, even one who freely requests death, may face criminal prosecution.

The most notorious example is that of retired Michigan pathologist Dr. Jack Kevorkian, who was found guilty of the second-degree murder of Thomas Youk, a 52-year-old race-car driver with terminal Lou Gehrig’s disease. Dr. Kevorkian injected a lethal mixture of Seconal, Anectine, and potassium chloride to end the patient’s life.

At trial, Dr. Kevorkian dismissed his lawyer and served ineffectively in his own defense, never taking the witness stand. Found guilty by a jury and sentenced to 10-25 years in prison, he served just more than 8 years until 2007, when he was released for good behavior. Previous charges by the state of Michigan against Dr. Kevorkian for assisting in the suicide of some 130 patients had proven unsuccessful.

This case spawned a nationwide debate on physician-directed deaths, with a few states now legalizing physician-assisted suicide, although euthanasia remains illegal throughout the nation.

In general, the remedy sought in a medical wrongful death case lies in a malpractice civil lawsuit against the negligent doctor. Sometimes, the plaintiff may assert that there was gross negligence where the conduct was particularly blameworthy, and if proven, the jury may award punitive damages.

Rarely, however, does the level of misconduct rise to that of criminal negligence. Here, the burden of proof for a conviction requires evidence beyond reasonable doubt, rather than the lower “more probable than not” evidentiary standard required in a civil lawsuit.

However, in cases where the physician’s conduct has markedly deviated from the standard of care, doctors have been successfully prosecuted for their “criminal” conduct.

For example, in an English case, an anesthesiologist was convicted of manslaughter in the death of a patient undergoing surgery for a detached retina. During surgery, the patient’s ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes, leading to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.

The tragic death of pop star Michael Jackson in 2009 is another example. Dr. Conrad Murray, a cardiologist who was Jackson’s personal physician, had used the surgical anesthetic propofol to treat Jackson’s insomnia in a bedroom setting without monitoring or resuscitation equipment. Concurrent use of the sedative lorazepam exacerbated the effect of propofol. The prosecution characterized Dr. Murray’s conduct as “egregious, unethical, and unconscionable,” which violated medical standards and amounted to criminal negligence. He was found guilty of involuntary manslaughter, and the state sentenced him to a 4-year prison term.

A new trend appears to be developing toward prosecuting doctors whose overprescription of controlled substances results in patient deaths.

According to a recent news report, New York for the first time convicted a doctor of manslaughter in the overdose deaths of patients from oxycodone and Xanax.¹ Some of the patients were reportedly prescribed as many as 500-800 pills over a 5-6 week period. Dr. Stan Li, an anesthesiologist and pain management specialist, allegedly saw up to 90 patients a day in his Queens, N.Y., weekend storefront clinic, charging them on a per-prescription basis. In his defense, Dr. Li claimed that he was simply trying to help suffering people who misused medications and who misled him (“tough patients and good liars”).

Meanwhile, a similar scenario played out in Oklahoma.² There, Dr. William Valuck, a pain management doctor, pleaded guilty to eight counts of second-degree murder in connection with several drug overdose deaths. He entered into a plea bargain with Oklahoma prosecutors and will serve 8 years in prison. Dr. Valuck had reportedly prescribed more controlled drugs than any other physician in the state of Oklahoma, which included hydrocodone, oxycodone, alprazolam, Valium, and Soma, sometimes as many as 600 pills at a time. He allegedly accepted only cash payment for the office visits, and review of his patient files revealed inadequate assessment of patient complaints or physical findings to justify the prescriptions.

Most physicians are unlikely to ever face the specter of criminal prosecution based on their medical performance. Only in the most egregious of circumstances have physicians been successfully prosecuted for homicide.

As requests for physicians to withhold or withdraw life-sustaining treatments grow, physicians may find themselves questioning what acts or omissions they may legally perform. Unless the legal landscape changes, however, it appears that the forgoing of life-sustaining treatments in the typical clinical context will not subject physicians to criminal prosecution.

References

1. “NY doctor convicted of manslaughter in 2 overdoses,” July 18, 2014 (http://bigstory.ap.org/article/ny-doctor-convicted-2-patients-overdose-deaths).

2. “Ex-doctor pleads guilty in overdose deaths,” Aug. 13, 2014 (www.usatoday.com/story/news/nation/2014/08/13/ex-doctor-guilty-deaths/14022735).

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].