With Commentary Clinician Reviews Editorial Board Member Julia Pallentino, MSN, JD, ARNP

Inadequate Management of Wheezing, Coughing Infant
A six-week-old infant was brought to a Mississippi hospital emergency department (ED) at about 10:30 PM with signs of wheezing, coughing, and decreased playfulness. Thirty minutes later, he was evaluated by the emergency physician. Initial test results included an oxygen saturation (SaO2) level of 100%, but she suspected pneumonia and ordered further tests.

The child underwent a breathing treatment, and his condition appeared to be improving. About 45 minutes after his initial evaluation, while being transported for a chest x-ray, he experienced cardiorespiratory arrest. Resuscitation was unsuccessful.

The plaintiff claimed that the emergency physician should have consulted a pediatrician, conducted continuous electronic monitoring of the infant, and administered oxygen.

The defendant claimed that the infant was properly monitored and that oxygen was not required, since his oxygen saturation level was 100%. Additionally, the defendant claimed she was cross-trained as a pediatrician and that the outcome would have been the same, regardless of treatment, because the child had advanced, severe pneumonia.

Outcome
According to a published account, a defense verdict was returned for the defendant emergency physician. Claims involving the defendant hospital were subject to decision by the court, which was also a defense verdict.

Comment
This case illustrates the potential pitfalls of relying too heavily on any one diagnostic element. In this case, there was an arguable overreliance on pulse oximetry values to exclude a clinically significant respiratory condition.

Diagnosing pneumonia can be difficult, and the clinical gestalt must be considered. A low pulse oximetry reading itself should be concerning, whereas normal pulse oximetry itself should not be reassuring when the patient exhibits tachypnea or other signs of distress. In one study, pulse oximetry was studied to determine whether it could be used to exclude pneumonia in children younger than 2 years presenting with respiratory complaints. It could not.¹ In sum, SaO2 levels may be normal in patients with pathology, and while initially reassuring, may plummet after the patient tires.

In this case, the defendants prevailed. The case report does not provide the patient’s vital signs, but the use of bronchodilators and the x-ray order suggest that there was some degree of respiratory distress. Because the child experienced cardiorespiratory arrest after one hour and 15 minutes in the ED, the defense was likely able to convince the jury that this unfortunate infant faced a high mortality risk even with more aggressive treatment.

Some have called pulse oximetry the “fifth vital sign.” Don’t let it become the only one. The SaO2 must be interpreted in the context of the patient’s overall presentation and in view of the other vitals (especially respiratory rate). —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

References
1. Tanen DA, Trocinski DR. The use of pulse oximetry to exclude pneumonia in children. Am J Emerg Med. 2002;20(6):521-523.

Inadequate Management of Wheezing, Coughing Infant
A six-week-old infant was brought to a Mississippi hospital emergency department (ED) at about 10:30 PM with signs of wheezing, coughing, and decreased playfulness. Thirty minutes later, he was evaluated by the emergency physician. Initial test results included an oxygen saturation (SaO2) level of 100%, but she suspected pneumonia and ordered further tests.

The child underwent a breathing treatment, and his condition appeared to be improving. About 45 minutes after his initial evaluation, while being transported for a chest x-ray, he experienced cardiorespiratory arrest. Resuscitation was unsuccessful.

The plaintiff claimed that the emergency physician should have consulted a pediatrician, conducted continuous electronic monitoring of the infant, and administered oxygen.

The defendant claimed that the infant was properly monitored and that oxygen was not required, since his oxygen saturation level was 100%. Additionally, the defendant claimed she was cross-trained as a pediatrician and that the outcome would have been the same, regardless of treatment, because the child had advanced, severe pneumonia.

Outcome
According to a published account, a defense verdict was returned for the defendant emergency physician. Claims involving the defendant hospital were subject to decision by the court, which was also a defense verdict.

Comment
This case illustrates the potential pitfalls of relying too heavily on any one diagnostic element. In this case, there was an arguable overreliance on pulse oximetry values to exclude a clinically significant respiratory condition.

Diagnosing pneumonia can be difficult, and the clinical gestalt must be considered. A low pulse oximetry reading itself should be concerning, whereas normal pulse oximetry itself should not be reassuring when the patient exhibits tachypnea or other signs of distress. In one study, pulse oximetry was studied to determine whether it could be used to exclude pneumonia in children younger than 2 years presenting with respiratory complaints. It could not.¹ In sum, SaO2 levels may be normal in patients with pathology, and while initially reassuring, may plummet after the patient tires.

In this case, the defendants prevailed. The case report does not provide the patient’s vital signs, but the use of bronchodilators and the x-ray order suggest that there was some degree of respiratory distress. Because the child experienced cardiorespiratory arrest after one hour and 15 minutes in the ED, the defense was likely able to convince the jury that this unfortunate infant faced a high mortality risk even with more aggressive treatment.

Some have called pulse oximetry the “fifth vital sign.” Don’t let it become the only one. The SaO2 must be interpreted in the context of the patient’s overall presentation and in view of the other vitals (especially respiratory rate). —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

References
1. Tanen DA, Trocinski DR. The use of pulse oximetry to exclude pneumonia in children. Am J Emerg Med. 2002;20(6):521-523.

Inadequate Management of Wheezing, Coughing Infant
A six-week-old infant was brought to a Mississippi hospital emergency department (ED) at about 10:30 PM with signs of wheezing, coughing, and decreased playfulness. Thirty minutes later, he was evaluated by the emergency physician. Initial test results included an oxygen saturation (SaO2) level of 100%, but she suspected pneumonia and ordered further tests.

The child underwent a breathing treatment, and his condition appeared to be improving. About 45 minutes after his initial evaluation, while being transported for a chest x-ray, he experienced cardiorespiratory arrest. Resuscitation was unsuccessful.

The plaintiff claimed that the emergency physician should have consulted a pediatrician, conducted continuous electronic monitoring of the infant, and administered oxygen.

The defendant claimed that the infant was properly monitored and that oxygen was not required, since his oxygen saturation level was 100%. Additionally, the defendant claimed she was cross-trained as a pediatrician and that the outcome would have been the same, regardless of treatment, because the child had advanced, severe pneumonia.

Outcome
According to a published account, a defense verdict was returned for the defendant emergency physician. Claims involving the defendant hospital were subject to decision by the court, which was also a defense verdict.

Comment
This case illustrates the potential pitfalls of relying too heavily on any one diagnostic element. In this case, there was an arguable overreliance on pulse oximetry values to exclude a clinically significant respiratory condition.

Diagnosing pneumonia can be difficult, and the clinical gestalt must be considered. A low pulse oximetry reading itself should be concerning, whereas normal pulse oximetry itself should not be reassuring when the patient exhibits tachypnea or other signs of distress. In one study, pulse oximetry was studied to determine whether it could be used to exclude pneumonia in children younger than 2 years presenting with respiratory complaints. It could not.¹ In sum, SaO2 levels may be normal in patients with pathology, and while initially reassuring, may plummet after the patient tires.

In this case, the defendants prevailed. The case report does not provide the patient’s vital signs, but the use of bronchodilators and the x-ray order suggest that there was some degree of respiratory distress. Because the child experienced cardiorespiratory arrest after one hour and 15 minutes in the ED, the defense was likely able to convince the jury that this unfortunate infant faced a high mortality risk even with more aggressive treatment.

Some have called pulse oximetry the “fifth vital sign.” Don’t let it become the only one. The SaO2 must be interpreted in the context of the patient’s overall presentation and in view of the other vitals (especially respiratory rate). —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

References
1. Tanen DA, Trocinski DR. The use of pulse oximetry to exclude pneumonia in children. Am J Emerg Med. 2002;20(6):521-523.

Failure to Order Colonoscopy Despite Patient’s Family History
After receiving care from the defendant primary care physician since 1997, a Massachusetts woman presented in the fall of 2003 complaining of fatigue; she was diagnosed with iron deficiency anemia in January 2004. Two months later, she underwent a diagnostic colonoscopy, which revealed a mass in the transverse colon. Following surgery to remove the obstructing cancer, the patient received palliative care and died at age 52.

Plaintiff claimed that a colonoscopy should have been ordered for the decedent at an age 10 years earlier than the age at which her youngest family member had been diagnosed with colon cancer (ie, a maternal cousin diagnosed in her early 40s, in addition to her mother, diagnosed in her early 50s, and her maternal grandmother, diagnosed at age 75).

The defendant physician claimed that the decedent’s fatigue was due to depression and that she had declined further lab tests. A handwritten entry in the medical record from 1998 indicated that a colonoscopy had been ordered and performed with negative results. However, no report from the gastroenterologist nor any billing information from that procedure was ever found in the record.

The defendant claimed that it was the responsibility of the gastroenterologist, not the named defendant, to make follow-up appointments at appropriate intervals for colonoscopy, given the patient’s family history. The defendant also claimed that the criteria for performing colonoscopies between 1997 and 2004 were still evolving and that no standards had yet been set.

Outcome
According to a published account, a $950,000 settlement was reached.

Comment
The message here is clear: Primary care providers have a responsibility to track screening requirements—even when other specialists are involved and should also have responsibility. In this case, the issue is colonoscopy screening in an individual with a strong family history for colon cancer. The plaintiff correctly argued that a colonoscopy is appropriate at an age 10 years earlier than the affected relative’s age at diagnosis, or at age 40—whichever is younger. Also, the procedure should be repeated at five-year intervals in those at increased risk. These standards were published in 1997, contrary to the defendant’s allegations, and further supported in the literature in 1999.^1,2

The plaintiff began treatment with the primary care provider in 1997, with a report of colonoscopy having been done some time in 1998, yielding normal results. Certainly a primary care provider would want documented evidence of the procedure, not just a note that one had been done. Even if a colonoscopy had been performed and the note is correct that findings were normal, the time for a repeat procedure should have been some time in 2003—the same time as the patient’s report of fatigue. This is the latest that a repeat screening should have been done. Any alarm symptom, such as anemia, weight loss, rectal bleeding, changes in bowel habits, or unexplained abdominal pain would require earlier colonoscopy.

I sympathize with the provider and his/her reliance upon the specialist to make the appropriate reminder. One would hope that reminders of this type would be made by the specialist. Ultimately, a specialist who failed to make a reminder might also be liable. However, the failure of the specialist does not relieve the primary care provider of responsibility.

Further, the allegation that the patient refused a lab test would also require documentation. Without it, we have a “he said, she said” situation with no way to confirm a patient failure to follow suggested medical direction. To a jury, a statement like this appears to be an obvious effort on the defendant’s part to explain away responsibility.

In my own practice as a family nurse practitioner specializing in gastroenterology, I review active patient files at every visit to confirm screening dates and any need for repeat screening. But often I see a patient only when screening visits actually occur, sometimes 10 years apart. When I am saying goodbye to a screening patient and telling them that we will contact them with a reminder at the time of the next scheduled screening, I also tell them to make a calendar reminder themselves. We use a computer system for reminders, but we all know that computers are fallible, as are humans. Every extra level of safety is important when it comes to these matters. Ultimately, however, the primary care provider is the one who sees a patient on a regular basis and has the opportunity, and thus the responsibility, to assure that screening matters are addressed.

What is also important is that this case and its outcome occurred even before the advent of the “medical home.” With the medical home concept in place, the responsibility would likely become even greater. —JP

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

References
1. Winawer SJ, Fletcher RH, Miller L, et al. Colorectal cancer screening: clinical guidelines and rationale. Gastroenterology. 1997;112 (2):594–642 [published corrections appear in Gastroenterology. 1997;112(3):1060 and 1998; 114(3):625].
2. Read TE, Kodner IJ. Colorectal cancer: risk factors and recommendations for early detection. Am Fam Physician. 1999;59(11):3083-3092.

Failure to Order Colonoscopy Despite Patient’s Family History
After receiving care from the defendant primary care physician since 1997, a Massachusetts woman presented in the fall of 2003 complaining of fatigue; she was diagnosed with iron deficiency anemia in January 2004. Two months later, she underwent a diagnostic colonoscopy, which revealed a mass in the transverse colon. Following surgery to remove the obstructing cancer, the patient received palliative care and died at age 52.

Plaintiff claimed that a colonoscopy should have been ordered for the decedent at an age 10 years earlier than the age at which her youngest family member had been diagnosed with colon cancer (ie, a maternal cousin diagnosed in her early 40s, in addition to her mother, diagnosed in her early 50s, and her maternal grandmother, diagnosed at age 75).

The defendant physician claimed that the decedent’s fatigue was due to depression and that she had declined further lab tests. A handwritten entry in the medical record from 1998 indicated that a colonoscopy had been ordered and performed with negative results. However, no report from the gastroenterologist nor any billing information from that procedure was ever found in the record.

The defendant claimed that it was the responsibility of the gastroenterologist, not the named defendant, to make follow-up appointments at appropriate intervals for colonoscopy, given the patient’s family history. The defendant also claimed that the criteria for performing colonoscopies between 1997 and 2004 were still evolving and that no standards had yet been set.

Outcome
According to a published account, a $950,000 settlement was reached.

Comment
The message here is clear: Primary care providers have a responsibility to track screening requirements—even when other specialists are involved and should also have responsibility. In this case, the issue is colonoscopy screening in an individual with a strong family history for colon cancer. The plaintiff correctly argued that a colonoscopy is appropriate at an age 10 years earlier than the affected relative’s age at diagnosis, or at age 40—whichever is younger. Also, the procedure should be repeated at five-year intervals in those at increased risk. These standards were published in 1997, contrary to the defendant’s allegations, and further supported in the literature in 1999.^1,2

The plaintiff began treatment with the primary care provider in 1997, with a report of colonoscopy having been done some time in 1998, yielding normal results. Certainly a primary care provider would want documented evidence of the procedure, not just a note that one had been done. Even if a colonoscopy had been performed and the note is correct that findings were normal, the time for a repeat procedure should have been some time in 2003—the same time as the patient’s report of fatigue. This is the latest that a repeat screening should have been done. Any alarm symptom, such as anemia, weight loss, rectal bleeding, changes in bowel habits, or unexplained abdominal pain would require earlier colonoscopy.

I sympathize with the provider and his/her reliance upon the specialist to make the appropriate reminder. One would hope that reminders of this type would be made by the specialist. Ultimately, a specialist who failed to make a reminder might also be liable. However, the failure of the specialist does not relieve the primary care provider of responsibility.

Further, the allegation that the patient refused a lab test would also require documentation. Without it, we have a “he said, she said” situation with no way to confirm a patient failure to follow suggested medical direction. To a jury, a statement like this appears to be an obvious effort on the defendant’s part to explain away responsibility.

In my own practice as a family nurse practitioner specializing in gastroenterology, I review active patient files at every visit to confirm screening dates and any need for repeat screening. But often I see a patient only when screening visits actually occur, sometimes 10 years apart. When I am saying goodbye to a screening patient and telling them that we will contact them with a reminder at the time of the next scheduled screening, I also tell them to make a calendar reminder themselves. We use a computer system for reminders, but we all know that computers are fallible, as are humans. Every extra level of safety is important when it comes to these matters. Ultimately, however, the primary care provider is the one who sees a patient on a regular basis and has the opportunity, and thus the responsibility, to assure that screening matters are addressed.

What is also important is that this case and its outcome occurred even before the advent of the “medical home.” With the medical home concept in place, the responsibility would likely become even greater. —JP

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

References
1. Winawer SJ, Fletcher RH, Miller L, et al. Colorectal cancer screening: clinical guidelines and rationale. Gastroenterology. 1997;112 (2):594–642 [published corrections appear in Gastroenterology. 1997;112(3):1060 and 1998; 114(3):625].
2. Read TE, Kodner IJ. Colorectal cancer: risk factors and recommendations for early detection. Am Fam Physician. 1999;59(11):3083-3092.

Failure to Order Colonoscopy Despite Patient’s Family History
After receiving care from the defendant primary care physician since 1997, a Massachusetts woman presented in the fall of 2003 complaining of fatigue; she was diagnosed with iron deficiency anemia in January 2004. Two months later, she underwent a diagnostic colonoscopy, which revealed a mass in the transverse colon. Following surgery to remove the obstructing cancer, the patient received palliative care and died at age 52.

Plaintiff claimed that a colonoscopy should have been ordered for the decedent at an age 10 years earlier than the age at which her youngest family member had been diagnosed with colon cancer (ie, a maternal cousin diagnosed in her early 40s, in addition to her mother, diagnosed in her early 50s, and her maternal grandmother, diagnosed at age 75).

The defendant physician claimed that the decedent’s fatigue was due to depression and that she had declined further lab tests. A handwritten entry in the medical record from 1998 indicated that a colonoscopy had been ordered and performed with negative results. However, no report from the gastroenterologist nor any billing information from that procedure was ever found in the record.

The defendant claimed that it was the responsibility of the gastroenterologist, not the named defendant, to make follow-up appointments at appropriate intervals for colonoscopy, given the patient’s family history. The defendant also claimed that the criteria for performing colonoscopies between 1997 and 2004 were still evolving and that no standards had yet been set.

Outcome
According to a published account, a $950,000 settlement was reached.

Comment
The message here is clear: Primary care providers have a responsibility to track screening requirements—even when other specialists are involved and should also have responsibility. In this case, the issue is colonoscopy screening in an individual with a strong family history for colon cancer. The plaintiff correctly argued that a colonoscopy is appropriate at an age 10 years earlier than the affected relative’s age at diagnosis, or at age 40—whichever is younger. Also, the procedure should be repeated at five-year intervals in those at increased risk. These standards were published in 1997, contrary to the defendant’s allegations, and further supported in the literature in 1999.^1,2

The plaintiff began treatment with the primary care provider in 1997, with a report of colonoscopy having been done some time in 1998, yielding normal results. Certainly a primary care provider would want documented evidence of the procedure, not just a note that one had been done. Even if a colonoscopy had been performed and the note is correct that findings were normal, the time for a repeat procedure should have been some time in 2003—the same time as the patient’s report of fatigue. This is the latest that a repeat screening should have been done. Any alarm symptom, such as anemia, weight loss, rectal bleeding, changes in bowel habits, or unexplained abdominal pain would require earlier colonoscopy.

I sympathize with the provider and his/her reliance upon the specialist to make the appropriate reminder. One would hope that reminders of this type would be made by the specialist. Ultimately, a specialist who failed to make a reminder might also be liable. However, the failure of the specialist does not relieve the primary care provider of responsibility.

Further, the allegation that the patient refused a lab test would also require documentation. Without it, we have a “he said, she said” situation with no way to confirm a patient failure to follow suggested medical direction. To a jury, a statement like this appears to be an obvious effort on the defendant’s part to explain away responsibility.

In my own practice as a family nurse practitioner specializing in gastroenterology, I review active patient files at every visit to confirm screening dates and any need for repeat screening. But often I see a patient only when screening visits actually occur, sometimes 10 years apart. When I am saying goodbye to a screening patient and telling them that we will contact them with a reminder at the time of the next scheduled screening, I also tell them to make a calendar reminder themselves. We use a computer system for reminders, but we all know that computers are fallible, as are humans. Every extra level of safety is important when it comes to these matters. Ultimately, however, the primary care provider is the one who sees a patient on a regular basis and has the opportunity, and thus the responsibility, to assure that screening matters are addressed.

What is also important is that this case and its outcome occurred even before the advent of the “medical home.” With the medical home concept in place, the responsibility would likely become even greater. —JP

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

References
1. Winawer SJ, Fletcher RH, Miller L, et al. Colorectal cancer screening: clinical guidelines and rationale. Gastroenterology. 1997;112 (2):594–642 [published corrections appear in Gastroenterology. 1997;112(3):1060 and 1998; 114(3):625].
2. Read TE, Kodner IJ. Colorectal cancer: risk factors and recommendations for early detection. Am Fam Physician. 1999;59(11):3083-3092.

An Alabama woman with chronic asthma went to a pharmacy to pick up a refill of 10-mg warfarin tablets, prescribed by the defendant physician. She began to take the medication as prescribed, one tablet bid. Eleven days later, she was hospitalized with shortness of breath. A blood test revealed elevated warfarin levels.

The plaintiff alleged negligence on the part of the pharmacy, the physician, and the family practice with which the physician was associated. The plaintiff claimed that warfarin toxicity had exacerbated her asthma and that she should not have been taking more than one tablet per day. The plaintiff claimed that the prescription was inappropriate and that the pharmacy should have had some system in place to catch excessive prescription dosing.

The pharmacy was dismissed from the action.

The defendant physician claimed that the plaintiff had been given oral instructions regarding dosage, as the dosage had been modified based on blood testing, and the label on the prescription bottle did not reflect the dosage instructions given to the plaintiff. The defendant claimed that the prescription had been written to reduce the required number of trips to the pharmacy, to accommodate the plaintiff’s difficulty in arranging for transportation. The defendant also maintained that the episode had not impacted the plaintiff’s asthma.

OUTCOME
According to a published report, a defense verdict was returned.

COMMENT
Here is a case in which doing a favor nearly turned into a malpractice judgment. Only the defense verdict saved this physician. Warfarin is a dangerous drug, as even a small change in dosing can cause a dramatic and deadly adverse effect. Warfarin level monitoring and subsequent dose modification present an especially rich opportunity for error.

In support of the need to provide clinical summaries of office visits to patients, the Health Resources and Services Administration cites research stating that 40% to 80% of medical information provided by practitioners “is forgotten immediately after a clinic visit.” Of the information that is remembered, almost one-half is remembered incorrectly. (See www.hrsa.gov/healthit/toolbox/HealthITAdoption toolbox/MeaningfulUse/howdoiprovideclinicalsummaries.html). It is important to remember that an office visit may be a stressful event for a patient, and visual or auditory deficits may come into play as well. These deficits may not always be obvious to the provider.

At the very least, this means that a clearly written documentation of the correct dosage of the medication must be provided to the patient. This is especially true when there is an absence of written instructions on the medication bottle or if the instructions are eliminated from the prescription for any reason. The written instruction provided at the office may also act as a safety check for the patient that will confirm the accuracy of the prescription provided at the pharmacy.

How many times have health care providers written a script for a dose different from the dose that the patient was orally instructed to take? This may occur for many reasons, including (as happened in this case) saving the patient difficult trips to a pharmacy. Another reason might be to help a patient to save on copays when a greater number of doses of a medication fall within standard practice parameters. I have often seen prescriptions written with instructions “take as directed” when the dosing regimen might be too lengthy or require too many changes, such as tapering a dose of prednisone.

The need for written instructions also applies when giving medication samples to patients. Often samples do not come with patient instructions, and even if they do, the instructions may be separated from the sample provided. It may be difficult for the patient to find dosing information in a lengthy and dense product information guide, which may or may not be included in the sample package. This presents another situation in which great care is needed to prevent potential drug errors.

In addition to providing written instructions, the health care provider may use other precautions to prevent patients from misunderstanding or completely forgetting instructions. Examples include asking the patient to repeat the instructions before leaving the examining room, and using the opportunity to clarify any misunderstandings; or having the medical assistant recheck to be sure the patient does not have any questions about medications or other instructions before leaving the office. So many times I have had an assistant advise me that the patient is confused about instructions but did not want to “bother” me or take up my time with questions. And yet, this same patient was willing to tell the assistant that questions remained. The more opportunities that exist to clarify instructions, the better. —JP

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

An Alabama woman with chronic asthma went to a pharmacy to pick up a refill of 10-mg warfarin tablets, prescribed by the defendant physician. She began to take the medication as prescribed, one tablet bid. Eleven days later, she was hospitalized with shortness of breath. A blood test revealed elevated warfarin levels.

The plaintiff alleged negligence on the part of the pharmacy, the physician, and the family practice with which the physician was associated. The plaintiff claimed that warfarin toxicity had exacerbated her asthma and that she should not have been taking more than one tablet per day. The plaintiff claimed that the prescription was inappropriate and that the pharmacy should have had some system in place to catch excessive prescription dosing.

The pharmacy was dismissed from the action.

The defendant physician claimed that the plaintiff had been given oral instructions regarding dosage, as the dosage had been modified based on blood testing, and the label on the prescription bottle did not reflect the dosage instructions given to the plaintiff. The defendant claimed that the prescription had been written to reduce the required number of trips to the pharmacy, to accommodate the plaintiff’s difficulty in arranging for transportation. The defendant also maintained that the episode had not impacted the plaintiff’s asthma.

OUTCOME
According to a published report, a defense verdict was returned.

COMMENT
Here is a case in which doing a favor nearly turned into a malpractice judgment. Only the defense verdict saved this physician. Warfarin is a dangerous drug, as even a small change in dosing can cause a dramatic and deadly adverse effect. Warfarin level monitoring and subsequent dose modification present an especially rich opportunity for error.

In support of the need to provide clinical summaries of office visits to patients, the Health Resources and Services Administration cites research stating that 40% to 80% of medical information provided by practitioners “is forgotten immediately after a clinic visit.” Of the information that is remembered, almost one-half is remembered incorrectly. (See www.hrsa.gov/healthit/toolbox/HealthITAdoption toolbox/MeaningfulUse/howdoiprovideclinicalsummaries.html). It is important to remember that an office visit may be a stressful event for a patient, and visual or auditory deficits may come into play as well. These deficits may not always be obvious to the provider.

At the very least, this means that a clearly written documentation of the correct dosage of the medication must be provided to the patient. This is especially true when there is an absence of written instructions on the medication bottle or if the instructions are eliminated from the prescription for any reason. The written instruction provided at the office may also act as a safety check for the patient that will confirm the accuracy of the prescription provided at the pharmacy.

How many times have health care providers written a script for a dose different from the dose that the patient was orally instructed to take? This may occur for many reasons, including (as happened in this case) saving the patient difficult trips to a pharmacy. Another reason might be to help a patient to save on copays when a greater number of doses of a medication fall within standard practice parameters. I have often seen prescriptions written with instructions “take as directed” when the dosing regimen might be too lengthy or require too many changes, such as tapering a dose of prednisone.

The need for written instructions also applies when giving medication samples to patients. Often samples do not come with patient instructions, and even if they do, the instructions may be separated from the sample provided. It may be difficult for the patient to find dosing information in a lengthy and dense product information guide, which may or may not be included in the sample package. This presents another situation in which great care is needed to prevent potential drug errors.

In addition to providing written instructions, the health care provider may use other precautions to prevent patients from misunderstanding or completely forgetting instructions. Examples include asking the patient to repeat the instructions before leaving the examining room, and using the opportunity to clarify any misunderstandings; or having the medical assistant recheck to be sure the patient does not have any questions about medications or other instructions before leaving the office. So many times I have had an assistant advise me that the patient is confused about instructions but did not want to “bother” me or take up my time with questions. And yet, this same patient was willing to tell the assistant that questions remained. The more opportunities that exist to clarify instructions, the better. —JP

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

An Alabama woman with chronic asthma went to a pharmacy to pick up a refill of 10-mg warfarin tablets, prescribed by the defendant physician. She began to take the medication as prescribed, one tablet bid. Eleven days later, she was hospitalized with shortness of breath. A blood test revealed elevated warfarin levels.

The plaintiff alleged negligence on the part of the pharmacy, the physician, and the family practice with which the physician was associated. The plaintiff claimed that warfarin toxicity had exacerbated her asthma and that she should not have been taking more than one tablet per day. The plaintiff claimed that the prescription was inappropriate and that the pharmacy should have had some system in place to catch excessive prescription dosing.

The pharmacy was dismissed from the action.

The defendant physician claimed that the plaintiff had been given oral instructions regarding dosage, as the dosage had been modified based on blood testing, and the label on the prescription bottle did not reflect the dosage instructions given to the plaintiff. The defendant claimed that the prescription had been written to reduce the required number of trips to the pharmacy, to accommodate the plaintiff’s difficulty in arranging for transportation. The defendant also maintained that the episode had not impacted the plaintiff’s asthma.

OUTCOME
According to a published report, a defense verdict was returned.

COMMENT
Here is a case in which doing a favor nearly turned into a malpractice judgment. Only the defense verdict saved this physician. Warfarin is a dangerous drug, as even a small change in dosing can cause a dramatic and deadly adverse effect. Warfarin level monitoring and subsequent dose modification present an especially rich opportunity for error.

In support of the need to provide clinical summaries of office visits to patients, the Health Resources and Services Administration cites research stating that 40% to 80% of medical information provided by practitioners “is forgotten immediately after a clinic visit.” Of the information that is remembered, almost one-half is remembered incorrectly. (See www.hrsa.gov/healthit/toolbox/HealthITAdoption toolbox/MeaningfulUse/howdoiprovideclinicalsummaries.html). It is important to remember that an office visit may be a stressful event for a patient, and visual or auditory deficits may come into play as well. These deficits may not always be obvious to the provider.

At the very least, this means that a clearly written documentation of the correct dosage of the medication must be provided to the patient. This is especially true when there is an absence of written instructions on the medication bottle or if the instructions are eliminated from the prescription for any reason. The written instruction provided at the office may also act as a safety check for the patient that will confirm the accuracy of the prescription provided at the pharmacy.

How many times have health care providers written a script for a dose different from the dose that the patient was orally instructed to take? This may occur for many reasons, including (as happened in this case) saving the patient difficult trips to a pharmacy. Another reason might be to help a patient to save on copays when a greater number of doses of a medication fall within standard practice parameters. I have often seen prescriptions written with instructions “take as directed” when the dosing regimen might be too lengthy or require too many changes, such as tapering a dose of prednisone.

The need for written instructions also applies when giving medication samples to patients. Often samples do not come with patient instructions, and even if they do, the instructions may be separated from the sample provided. It may be difficult for the patient to find dosing information in a lengthy and dense product information guide, which may or may not be included in the sample package. This presents another situation in which great care is needed to prevent potential drug errors.

In addition to providing written instructions, the health care provider may use other precautions to prevent patients from misunderstanding or completely forgetting instructions. Examples include asking the patient to repeat the instructions before leaving the examining room, and using the opportunity to clarify any misunderstandings; or having the medical assistant recheck to be sure the patient does not have any questions about medications or other instructions before leaving the office. So many times I have had an assistant advise me that the patient is confused about instructions but did not want to “bother” me or take up my time with questions. And yet, this same patient was willing to tell the assistant that questions remained. The more opportunities that exist to clarify instructions, the better. —JP

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Premature Infant Erroneously Deemed Nonviable
The plaintiff mother was six months pregnant with her first child when she miscarried at her home in Massachusetts, and an ambulance was called. The EMTs helped the woman to a stretcher, then went to retrieve the fetus from the bathroom floor. The infant was seen moving its head, and the EMTs summoned ALS to the scene. The infant was placed in a small box. The ALS personnel visually assessed the infant and determined that it was “nonviable.” No fetal heart check was conducted in the field.

The mother and fetus arrived at the hospital 17 minutes after the ambulance was called. At the hospital, a nurse noticed that the fetus was warm and had a heartbeat. The infant was taken to the special care nursery and placed under a warmer, where resuscitation efforts began. The infant was later transported to another hospital’s neonatal ICU for further care and treatment but at six weeks of age died of brain damage due to oxygen deprivation.

The plaintiff claimed that the EMTs should have provided evaluation and treatment for the infant and that they lacked proper training to determine the viability of a newborn. The plaintiff also claimed that placing the infant inside a plastic bag inside a box with a lid further deprived it of oxygen.

OUTCOME
A settlement of $1 million was reached.

COMMENT
This case illustrates the perils of allowing prehospital personnel excessive latitude in determining when resuscitation efforts should terminate. Unless death is obvious, vigorous resuscitation and expeditious transport must be undertaken.

In most jurisdictions, “obvious” death requires clear evidence of death (eg, rigor mortis) or a clearly nonsurvivable injury (eg, decapitation, fully transected trunk). In cases where death is not evident under regional Emergency Medical Services guidelines, resuscitation efforts must be full and robust, continuing until medical control orders them to cease.

Medical control refers to medical direction given to responding prehospital personnel; it may be “online” or “offline.” Online control refers to direct clinician-to–prehospital provider direction via radio or telecommunication means, whereas offline control refers to indirect guidance via preestablished protocols and guidelines. In cases in which responding personnel are uncertain whether the indicators of death are met under existing offline protocols, resuscitation efforts should begin and proceed until online medical control orders those efforts terminated.

Jurors will expect an ambulance to move swiftly to the scene, with EMS personnel providing prompt stabilization and rapid transport to the hospital. Jurors will view premature decisions to “count a patient out” harshly.

To be fair, transporting a patient with little chance for survival presents a burden to the immediate community. While transporting such a patient (and for some time immediately following arrival at the hospital), the ambulance is out of service and unavailable to other patients requiring transport who stand a better chance of survival. However, jurors will expect a patient with even a slim chance for survival to be given that chance.

Those who are incontrovertibly deceased should not be transported via ambulance. —DML

Aortic Dissection Misdiagnosed as Abdominal Pain and Hypertension
A 35-year-old Illinois man experienced sudden-onset severe abdominal pain at work. An ambulance was called. His co-workers described him as crying and writhing on the floor, with difficulty breathing and profuse sweating. The ambulance report described abdominal pain and cold, pale, diaphoretic skin but normal vital signs.

At the hospital emergency department (ED), the triage nurse noted mid-abdominal pain that felt like cramping, normal vital signs, and skin that was pink, warm, and dry. The defendant emergency physician, Dr. M., noted that the patient described moderate abdominal pain in the epigastric area. Dr. M.’s initial impression was gastritis or pancreatitis, but he ordered a cardiac work-up to rule out acute coronary syndrome. Cardiac enzyme levels were normal, but ECG results were abnormal and consistent with cardiac ischemia or hypertension. A chest x-ray showed an enlarged heart, which was consistent with the patient’s known history of hypertension.

The man’s co-workers, who visited him in a hallway in the ED, stated that the department was very busy. They stated that the patient was complaining of chest pain and spitting up blood, and that hospital personnel were paying him little attention.

The patient was given a “GI cocktail,” after which he vomited and reported feeling better. Dr. M. reevaluated him, noted that the patient reported no more abdominal pain, and discharged him with a diagnosis of abdominal pain and hypertension.

At discharge, the patient was instructed to follow up with a health care provider the following day for his hypertension and enlarged heart. According to a nurse’s note, the patient ambulated without difficulty at the time of discharge. The friend who picked him up, however, claimed that he was still in significant pain and had trouble walking to her car.

Six days later, the man was found dead at home. An autopsy revealed aortic dissection as the cause of death.

Plaintiff for the decedent claimed that Dr. M. failed to perform a proper history and physical examination, which would have revealed the signs and symptoms described by the decedent’s co-workers. It was undisputed that the co-workers’ description of the decedent’s condition at work was suggestive of aortic dissection. The plaintiff claimed that CT should have been ordered, with results indicating surgery; this would likely have prevented the man’s death. The plaintiff also claimed that the decedent’s abnormal ECG results should have prompted hospital admission and an inpatient cardiac work-up.

The defendant claimed that the decedent never reported the severe and dramatic symptoms described by his co-workers, to the paramedics, the triage nurse, or the emergency physician. Dr. M. further maintained that a proper history and physical examination were performed, that proper studies were conducted and appropriate medications provided, and that the decedent was properly discharged in an improved condition.

OUTCOME
The defendant hospital settled for $75,000 before trial. According to a published account, a defense verdict was returned, although an earlier trial in the case had ended in a $3.7 million verdict.

COMMENT
A history of abdominal pain and hypertension makes aortic dissection a diagnostic possibility, but it is unclear whether aortic dissection was considered as part of the differential diagnosis. The sudden onset and severe nature of the pain were clues, but controversy arose over whether this presentation was conveyed to the prehospital responders, the triage nurse, and/or the emergency physician.

This case was apparently retried following a substantial $3.7 million verdict, with the second result being quite different: a $75,000 settlement from the hospital and a defense verdict. It is unclear why the case was retried.

There are a few noteworthy points in this case. First, there was a disconnect between the description of the patient’s presentation given by his co-workers and the content of the EMS, nursing, and physician notes. The co-workers described sudden onset of severe pain, resulting in the patient crying and writhing on the floor; the triage nurse characterized the pain as abdominal “cramping” in quality, with the physician noting the patient’s description as “moderate” in intensity—a substantial difference. Whenever possible, attempt to elicit history from different sources and document each source of the information. In this case, more than likely the patient’s original presentation was not clearly communicated by the patient or by his co-workers to any of the treatment providers—the EMTs, the triage nurses and other hospital personnel, and the emergency physician.

Second, use of a “GI cocktail” as a diagnostic test to distinguish between gastrointestinal (GI) and non-GI causes of abdominal or chest pain can be problematic. The composition of the GI cocktail is generally antacid, viscous lidocaine, and an anticholinergic agent. Here, after consuming the GI cocktail, the patient said he felt better—perhaps falsely suggesting a gastrointestinal source of pain. While the use of a GI cocktail may provide symptomatic relief in certain circumstances, there is inadequate evidence to support making diagnostic decisions based on a patient’s response to it. So don’t.

Third, EDs are often overcrowded and chaotically busy. Such conditions can result in an overburdened staff, with clinicians feeling they did the best they could in an extremely difficult environment. Some clinicians have remarked they would like the jury to see “how the ED was that day”—to explain the pressure, the pace, and the other dire and pressing patient needs. But the malpractice plaintiff wants the jury to see “how the ED was that day,” too—to support the conclusion that the patient was not given the proper time, attention, and care that his or her condition warranted. Here, the plaintiff’s co-workers were willing to testify that the patient was “kept in the hallway,” that the department was “very busy,” and the personnel did not “pay much attention” to the patient—all to support the conclusion that the care was substandard.

While I can’t offer any breakthrough suggestions to cure the problem of ED overcrowding, I can recommend that clinicians do their best to make sure patients roomed in unconventional locations (such as the hallway) receive full attention and requisite concern so that they do not feel (or are not perceived as) neglected. A patient who has been placed in the hallway is still a patient in the hospital under your care. It goes without saying that a clinician should never form diagnostic or treatment impressions by virtue of where a patient is being examined: When a patient in the hallway is discovered to be acutely ill, immediate steps must be taken to re-room that patient. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Premature Infant Erroneously Deemed Nonviable
The plaintiff mother was six months pregnant with her first child when she miscarried at her home in Massachusetts, and an ambulance was called. The EMTs helped the woman to a stretcher, then went to retrieve the fetus from the bathroom floor. The infant was seen moving its head, and the EMTs summoned ALS to the scene. The infant was placed in a small box. The ALS personnel visually assessed the infant and determined that it was “nonviable.” No fetal heart check was conducted in the field.

The mother and fetus arrived at the hospital 17 minutes after the ambulance was called. At the hospital, a nurse noticed that the fetus was warm and had a heartbeat. The infant was taken to the special care nursery and placed under a warmer, where resuscitation efforts began. The infant was later transported to another hospital’s neonatal ICU for further care and treatment but at six weeks of age died of brain damage due to oxygen deprivation.

The plaintiff claimed that the EMTs should have provided evaluation and treatment for the infant and that they lacked proper training to determine the viability of a newborn. The plaintiff also claimed that placing the infant inside a plastic bag inside a box with a lid further deprived it of oxygen.

OUTCOME
A settlement of $1 million was reached.

COMMENT
This case illustrates the perils of allowing prehospital personnel excessive latitude in determining when resuscitation efforts should terminate. Unless death is obvious, vigorous resuscitation and expeditious transport must be undertaken.

In most jurisdictions, “obvious” death requires clear evidence of death (eg, rigor mortis) or a clearly nonsurvivable injury (eg, decapitation, fully transected trunk). In cases where death is not evident under regional Emergency Medical Services guidelines, resuscitation efforts must be full and robust, continuing until medical control orders them to cease.

Medical control refers to medical direction given to responding prehospital personnel; it may be “online” or “offline.” Online control refers to direct clinician-to–prehospital provider direction via radio or telecommunication means, whereas offline control refers to indirect guidance via preestablished protocols and guidelines. In cases in which responding personnel are uncertain whether the indicators of death are met under existing offline protocols, resuscitation efforts should begin and proceed until online medical control orders those efforts terminated.

Jurors will expect an ambulance to move swiftly to the scene, with EMS personnel providing prompt stabilization and rapid transport to the hospital. Jurors will view premature decisions to “count a patient out” harshly.

To be fair, transporting a patient with little chance for survival presents a burden to the immediate community. While transporting such a patient (and for some time immediately following arrival at the hospital), the ambulance is out of service and unavailable to other patients requiring transport who stand a better chance of survival. However, jurors will expect a patient with even a slim chance for survival to be given that chance.

Those who are incontrovertibly deceased should not be transported via ambulance. —DML

Aortic Dissection Misdiagnosed as Abdominal Pain and Hypertension
A 35-year-old Illinois man experienced sudden-onset severe abdominal pain at work. An ambulance was called. His co-workers described him as crying and writhing on the floor, with difficulty breathing and profuse sweating. The ambulance report described abdominal pain and cold, pale, diaphoretic skin but normal vital signs.

At the hospital emergency department (ED), the triage nurse noted mid-abdominal pain that felt like cramping, normal vital signs, and skin that was pink, warm, and dry. The defendant emergency physician, Dr. M., noted that the patient described moderate abdominal pain in the epigastric area. Dr. M.’s initial impression was gastritis or pancreatitis, but he ordered a cardiac work-up to rule out acute coronary syndrome. Cardiac enzyme levels were normal, but ECG results were abnormal and consistent with cardiac ischemia or hypertension. A chest x-ray showed an enlarged heart, which was consistent with the patient’s known history of hypertension.

The man’s co-workers, who visited him in a hallway in the ED, stated that the department was very busy. They stated that the patient was complaining of chest pain and spitting up blood, and that hospital personnel were paying him little attention.

The patient was given a “GI cocktail,” after which he vomited and reported feeling better. Dr. M. reevaluated him, noted that the patient reported no more abdominal pain, and discharged him with a diagnosis of abdominal pain and hypertension.

At discharge, the patient was instructed to follow up with a health care provider the following day for his hypertension and enlarged heart. According to a nurse’s note, the patient ambulated without difficulty at the time of discharge. The friend who picked him up, however, claimed that he was still in significant pain and had trouble walking to her car.

Six days later, the man was found dead at home. An autopsy revealed aortic dissection as the cause of death.

Plaintiff for the decedent claimed that Dr. M. failed to perform a proper history and physical examination, which would have revealed the signs and symptoms described by the decedent’s co-workers. It was undisputed that the co-workers’ description of the decedent’s condition at work was suggestive of aortic dissection. The plaintiff claimed that CT should have been ordered, with results indicating surgery; this would likely have prevented the man’s death. The plaintiff also claimed that the decedent’s abnormal ECG results should have prompted hospital admission and an inpatient cardiac work-up.

The defendant claimed that the decedent never reported the severe and dramatic symptoms described by his co-workers, to the paramedics, the triage nurse, or the emergency physician. Dr. M. further maintained that a proper history and physical examination were performed, that proper studies were conducted and appropriate medications provided, and that the decedent was properly discharged in an improved condition.

OUTCOME
The defendant hospital settled for $75,000 before trial. According to a published account, a defense verdict was returned, although an earlier trial in the case had ended in a $3.7 million verdict.

COMMENT
A history of abdominal pain and hypertension makes aortic dissection a diagnostic possibility, but it is unclear whether aortic dissection was considered as part of the differential diagnosis. The sudden onset and severe nature of the pain were clues, but controversy arose over whether this presentation was conveyed to the prehospital responders, the triage nurse, and/or the emergency physician.

This case was apparently retried following a substantial $3.7 million verdict, with the second result being quite different: a $75,000 settlement from the hospital and a defense verdict. It is unclear why the case was retried.

There are a few noteworthy points in this case. First, there was a disconnect between the description of the patient’s presentation given by his co-workers and the content of the EMS, nursing, and physician notes. The co-workers described sudden onset of severe pain, resulting in the patient crying and writhing on the floor; the triage nurse characterized the pain as abdominal “cramping” in quality, with the physician noting the patient’s description as “moderate” in intensity—a substantial difference. Whenever possible, attempt to elicit history from different sources and document each source of the information. In this case, more than likely the patient’s original presentation was not clearly communicated by the patient or by his co-workers to any of the treatment providers—the EMTs, the triage nurses and other hospital personnel, and the emergency physician.

Second, use of a “GI cocktail” as a diagnostic test to distinguish between gastrointestinal (GI) and non-GI causes of abdominal or chest pain can be problematic. The composition of the GI cocktail is generally antacid, viscous lidocaine, and an anticholinergic agent. Here, after consuming the GI cocktail, the patient said he felt better—perhaps falsely suggesting a gastrointestinal source of pain. While the use of a GI cocktail may provide symptomatic relief in certain circumstances, there is inadequate evidence to support making diagnostic decisions based on a patient’s response to it. So don’t.

Third, EDs are often overcrowded and chaotically busy. Such conditions can result in an overburdened staff, with clinicians feeling they did the best they could in an extremely difficult environment. Some clinicians have remarked they would like the jury to see “how the ED was that day”—to explain the pressure, the pace, and the other dire and pressing patient needs. But the malpractice plaintiff wants the jury to see “how the ED was that day,” too—to support the conclusion that the patient was not given the proper time, attention, and care that his or her condition warranted. Here, the plaintiff’s co-workers were willing to testify that the patient was “kept in the hallway,” that the department was “very busy,” and the personnel did not “pay much attention” to the patient—all to support the conclusion that the care was substandard.

While I can’t offer any breakthrough suggestions to cure the problem of ED overcrowding, I can recommend that clinicians do their best to make sure patients roomed in unconventional locations (such as the hallway) receive full attention and requisite concern so that they do not feel (or are not perceived as) neglected. A patient who has been placed in the hallway is still a patient in the hospital under your care. It goes without saying that a clinician should never form diagnostic or treatment impressions by virtue of where a patient is being examined: When a patient in the hallway is discovered to be acutely ill, immediate steps must be taken to re-room that patient. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Premature Infant Erroneously Deemed Nonviable
The plaintiff mother was six months pregnant with her first child when she miscarried at her home in Massachusetts, and an ambulance was called. The EMTs helped the woman to a stretcher, then went to retrieve the fetus from the bathroom floor. The infant was seen moving its head, and the EMTs summoned ALS to the scene. The infant was placed in a small box. The ALS personnel visually assessed the infant and determined that it was “nonviable.” No fetal heart check was conducted in the field.

The mother and fetus arrived at the hospital 17 minutes after the ambulance was called. At the hospital, a nurse noticed that the fetus was warm and had a heartbeat. The infant was taken to the special care nursery and placed under a warmer, where resuscitation efforts began. The infant was later transported to another hospital’s neonatal ICU for further care and treatment but at six weeks of age died of brain damage due to oxygen deprivation.

The plaintiff claimed that the EMTs should have provided evaluation and treatment for the infant and that they lacked proper training to determine the viability of a newborn. The plaintiff also claimed that placing the infant inside a plastic bag inside a box with a lid further deprived it of oxygen.

OUTCOME
A settlement of $1 million was reached.

COMMENT
This case illustrates the perils of allowing prehospital personnel excessive latitude in determining when resuscitation efforts should terminate. Unless death is obvious, vigorous resuscitation and expeditious transport must be undertaken.

In most jurisdictions, “obvious” death requires clear evidence of death (eg, rigor mortis) or a clearly nonsurvivable injury (eg, decapitation, fully transected trunk). In cases where death is not evident under regional Emergency Medical Services guidelines, resuscitation efforts must be full and robust, continuing until medical control orders them to cease.

Medical control refers to medical direction given to responding prehospital personnel; it may be “online” or “offline.” Online control refers to direct clinician-to–prehospital provider direction via radio or telecommunication means, whereas offline control refers to indirect guidance via preestablished protocols and guidelines. In cases in which responding personnel are uncertain whether the indicators of death are met under existing offline protocols, resuscitation efforts should begin and proceed until online medical control orders those efforts terminated.

Jurors will expect an ambulance to move swiftly to the scene, with EMS personnel providing prompt stabilization and rapid transport to the hospital. Jurors will view premature decisions to “count a patient out” harshly.

To be fair, transporting a patient with little chance for survival presents a burden to the immediate community. While transporting such a patient (and for some time immediately following arrival at the hospital), the ambulance is out of service and unavailable to other patients requiring transport who stand a better chance of survival. However, jurors will expect a patient with even a slim chance for survival to be given that chance.

Those who are incontrovertibly deceased should not be transported via ambulance. —DML

Aortic Dissection Misdiagnosed as Abdominal Pain and Hypertension
A 35-year-old Illinois man experienced sudden-onset severe abdominal pain at work. An ambulance was called. His co-workers described him as crying and writhing on the floor, with difficulty breathing and profuse sweating. The ambulance report described abdominal pain and cold, pale, diaphoretic skin but normal vital signs.

At the hospital emergency department (ED), the triage nurse noted mid-abdominal pain that felt like cramping, normal vital signs, and skin that was pink, warm, and dry. The defendant emergency physician, Dr. M., noted that the patient described moderate abdominal pain in the epigastric area. Dr. M.’s initial impression was gastritis or pancreatitis, but he ordered a cardiac work-up to rule out acute coronary syndrome. Cardiac enzyme levels were normal, but ECG results were abnormal and consistent with cardiac ischemia or hypertension. A chest x-ray showed an enlarged heart, which was consistent with the patient’s known history of hypertension.

The man’s co-workers, who visited him in a hallway in the ED, stated that the department was very busy. They stated that the patient was complaining of chest pain and spitting up blood, and that hospital personnel were paying him little attention.

The patient was given a “GI cocktail,” after which he vomited and reported feeling better. Dr. M. reevaluated him, noted that the patient reported no more abdominal pain, and discharged him with a diagnosis of abdominal pain and hypertension.

At discharge, the patient was instructed to follow up with a health care provider the following day for his hypertension and enlarged heart. According to a nurse’s note, the patient ambulated without difficulty at the time of discharge. The friend who picked him up, however, claimed that he was still in significant pain and had trouble walking to her car.

Six days later, the man was found dead at home. An autopsy revealed aortic dissection as the cause of death.

Plaintiff for the decedent claimed that Dr. M. failed to perform a proper history and physical examination, which would have revealed the signs and symptoms described by the decedent’s co-workers. It was undisputed that the co-workers’ description of the decedent’s condition at work was suggestive of aortic dissection. The plaintiff claimed that CT should have been ordered, with results indicating surgery; this would likely have prevented the man’s death. The plaintiff also claimed that the decedent’s abnormal ECG results should have prompted hospital admission and an inpatient cardiac work-up.

The defendant claimed that the decedent never reported the severe and dramatic symptoms described by his co-workers, to the paramedics, the triage nurse, or the emergency physician. Dr. M. further maintained that a proper history and physical examination were performed, that proper studies were conducted and appropriate medications provided, and that the decedent was properly discharged in an improved condition.

OUTCOME
The defendant hospital settled for $75,000 before trial. According to a published account, a defense verdict was returned, although an earlier trial in the case had ended in a $3.7 million verdict.

COMMENT
A history of abdominal pain and hypertension makes aortic dissection a diagnostic possibility, but it is unclear whether aortic dissection was considered as part of the differential diagnosis. The sudden onset and severe nature of the pain were clues, but controversy arose over whether this presentation was conveyed to the prehospital responders, the triage nurse, and/or the emergency physician.

This case was apparently retried following a substantial $3.7 million verdict, with the second result being quite different: a $75,000 settlement from the hospital and a defense verdict. It is unclear why the case was retried.

There are a few noteworthy points in this case. First, there was a disconnect between the description of the patient’s presentation given by his co-workers and the content of the EMS, nursing, and physician notes. The co-workers described sudden onset of severe pain, resulting in the patient crying and writhing on the floor; the triage nurse characterized the pain as abdominal “cramping” in quality, with the physician noting the patient’s description as “moderate” in intensity—a substantial difference. Whenever possible, attempt to elicit history from different sources and document each source of the information. In this case, more than likely the patient’s original presentation was not clearly communicated by the patient or by his co-workers to any of the treatment providers—the EMTs, the triage nurses and other hospital personnel, and the emergency physician.

Second, use of a “GI cocktail” as a diagnostic test to distinguish between gastrointestinal (GI) and non-GI causes of abdominal or chest pain can be problematic. The composition of the GI cocktail is generally antacid, viscous lidocaine, and an anticholinergic agent. Here, after consuming the GI cocktail, the patient said he felt better—perhaps falsely suggesting a gastrointestinal source of pain. While the use of a GI cocktail may provide symptomatic relief in certain circumstances, there is inadequate evidence to support making diagnostic decisions based on a patient’s response to it. So don’t.

Third, EDs are often overcrowded and chaotically busy. Such conditions can result in an overburdened staff, with clinicians feeling they did the best they could in an extremely difficult environment. Some clinicians have remarked they would like the jury to see “how the ED was that day”—to explain the pressure, the pace, and the other dire and pressing patient needs. But the malpractice plaintiff wants the jury to see “how the ED was that day,” too—to support the conclusion that the patient was not given the proper time, attention, and care that his or her condition warranted. Here, the plaintiff’s co-workers were willing to testify that the patient was “kept in the hallway,” that the department was “very busy,” and the personnel did not “pay much attention” to the patient—all to support the conclusion that the care was substandard.

While I can’t offer any breakthrough suggestions to cure the problem of ED overcrowding, I can recommend that clinicians do their best to make sure patients roomed in unconventional locations (such as the hallway) receive full attention and requisite concern so that they do not feel (or are not perceived as) neglected. A patient who has been placed in the hallway is still a patient in the hospital under your care. It goes without saying that a clinician should never form diagnostic or treatment impressions by virtue of where a patient is being examined: When a patient in the hallway is discovered to be acutely ill, immediate steps must be taken to re-room that patient. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Excessive Dosing, Inadequate Monitoring Blamed in Death
A 39-year-old man with a history of pain complaints went to a Virginia hospital emergency department (ED) with a migraine. The defendant attending physician ordered IV medications; however, after several unsuccessful attempts to establish an IV line, the treating nurse administered 8 mg hydromorphone intramuscularly (IM). The patient was given a second dose of hydromorphone (6 mg IM) about an hour later before being transferred to a nonemergent room; there, he fell asleep. Loud snoring was noted, but the nurse responsible for monitoring the patient was not alarmed.

The patient then experienced respiratory arrest. Attempts to resuscitate him were unsuccessful.

Plaintiff for the decedent alleged negligence in improperly monitoring him and in failing to recognize signs of distress in a timely fashion. The plaintiff also claimed that the second dose overmedicated the decedent, leading to respiratory arrest. The plaintiff alleged negligence by the attending physician for ordering the second dose of hydromorphone and for transferring the decedent from the ED to a nonemergent room.

The claims against the defendant attending physician went to trial. The defendant claimed that the decedent was stable and showed no signs of acute distress at the time of transfer.

OUTCOME
The hospital settled for a confidential amount prior to trial. According to a published account, a defense verdict was returned in the trial against the attending physician.

COMMENT
This patient was given hydromorphone 8 mg IM at 5:55 am and hydromorphone 6 mg IM at 7:11 am as first-line treatment for migraine. He was discharged from the ED 10 minutes after receiving the second dose and transported to a gastroenterology suite for a previously scheduled colonoscopy. There, he was sparsely monitored, became apneic, and died.

Was the standard of care breached in this case?

The patient appears to have been offered a high-dose narcotic as abortive therapy for migraine, contrary to current recommendations (Gilmore and Michael. Am Fam Physician. 2011;83[3]:271-280). Use of opiates in these circumstances is problematic, and yet opiates are still often prescribed as first-line agents in some practices.

If this were a headache of moderate to severe intensity, triptans would have been the preferred abortive agent. No evidence was presented that this 39-year-old patient had a contraindication to triptans, dihydroergotamine, isometheptene, or intranasal lidocaine. He was given narcotics as first-line treatment for migraine.

Migraine can be extraordinarily painful, and we clinicians are ethically and legally bound to offer the best treatment available to arrest that pain. For most patients, high-dose parenteral narcotics are not favored for the management of migraine because of the potential for precipitating rebound headaches and because opiate dependence can lead to continuing, escalating demands for more narcotic intervention—and worsening headaches.

In this case, the dose of 14 mg of hydromorphone administered over 1 hour and 16 minutes is staggering—even for a patient who is not opiate-naïve. Further, in the IM route of administration (compared with IV), absorption and peak effect are imprecise. Even if the clinician were to argue that the patient’s narcotic tolerance necessitated this dose, the clinician was compelled to ensure that the patient was adequately monitored.

Migraine will become the clinician’s headache if the approach is nonchalant. First, always fully assess a patient with migraine to determine whether the headache is consistent with prior episodes; an atypical presentation may require neuroimaging or an alternate diagnostic approach. Second, always perform a proper examination, even when the headache is described as typical. Third, offer therapeutic interventions that follow evidence-based guidelines. Opiate use should be offered (if at all) at the end of a treatment ­algorithm.

For patients with putative allergies to all abortive treatments other than narcotics, it is wise for a neurologist or pain management group to evaluate the patient and establish a solid, agreed-upon treatment plan. This plan should acknowledge that more appropriate treatment is unavailable, that the patient has been fully informed of the risks and limitations of opiate agents, and that the patient agrees to follow this clearly defined plan.

Like hydromorphone  and other opiate agents, meperidine is another drug with issues. Though still prescribed by some, meperidine is in specific disfavor because of the abuse potential and the risk for seizures induced by normeperidine (a metabolite of meperidine). Its once-touted benefit—avoidance of sphincter of Oddi spasm—is mythical and not a valid reason to keep meperidine stocked. A last highly specialized use may be to treat severe refractory rigors—but it is safe to say that meperidine should be closer to a museum for antiquated medications than to your migraine patient. Jurors will fault clinicians when patients become addicted or have seizures when safer options exist. Don’t use it.

Improve your management of migraine patients and lower your malpractice risk by performing a full assessment and following evidence-based guidelines to choose appropriate agents. In any case in which high-dose narcotics must be administered to abort a high-­intensity migraine, a jury will expect the patient to be carefully monitored for respiratory depression until his/her sensorium is fully cleared following the agent’s peak effect.

Simply put, opiates must not be given in ambulatory settings in which the patient is expected to be discharged after 20 to 30 minutes of observation. This medication is not a flu shot, and the plaintiff’s attorney will hammer this point home if your narcotized migraine patient leaves your practice setting and steps in front of a vehicle. Protect the patient and avoid malpractice risk. —DML

Woman Given Morphine Despite Well-Documented Allergy
A 66-year-old Utah woman underwent surgery at the defendant hospital. The defendant surgeon ordered morphine to be administered following surgery—despite documentation in the patient’s record that she was allergic to morphine, and despite the fact that she was wearing a wristband indicating that she was allergic to morphine. The morphine was administered by hospital nurses over the course of several hours.

The patient became asystolic about 14 hours after receiving the first dose. She was revived but had suffered anoxic brain injury. She died two days later.

The decedent’s son-in-law alleged that he had seen a hospital employee remove the wristband indicating her allergy to morphine and throw it into the wastebasket; the son-in-law retrieved it.

The plaintiffs also claimed that a review of the medical record showed that the word “morphine” had been erased under the section entitled “Allergies.” This was discovered in a comparison of the hospital records with identical records supplied by one of the defendant doctors. In that doctor’s records, the word “morphine” was included.

OUTCOME
According to a published report, a confidential settlement was reached.

COMMENT
Because the settlement was confidential, we don’t know what the payment was—but we can be sure it was substantial.

Jurors abhor attempts to cover up mistakes, even when the jury pool is relatively conservative. Instead of viewing the matter as an error, jurors will impute the worst motives and will exact significant punitive damages. In Utah, for example, where this case occurred, punitive damages are not permitted unless the plaintiff can show by “clear and convincing evidence” that the defendants acted maliciously, with intentional fraudulence, or with reckless indifference toward the rights of others (Utah Code Ann §78-18-1).

This may be a case in which the clinician and staff succumbed to the stress of the moment and acted poorly and unprofessionally. Nevertheless, the staff members’ actions to cover up the mistake, by discarding the patient’s wristband that specified the allergy and erasing the note of the patient’s morphine allergy in the medical record, cause problems far beyond the initial mistake.

Because the malicious act (the cover-up activity) occurred after the fact, it did not directly injure the patient and could not form the basis for punitive damages in a malpractice action. However, the cover-up activity may be the basis for punitive damages for the family’s derivative “intentional infliction of emotional distress” claims. Generally, this type of claim must involve conduct that would prompt the average person hearing the facts to exclaim, “Outrageous!” That test is met here.

If presented with a case that may result in malpractice liability exposure, do not lose your head, blow your cool, or act rashly. Always act in the best interest of the patient and let the record reflect your efforts to protect the patient. Do not use the medical record for defensive discussion out of step with normal charting practices. Chart directly, dispassionately, and professionally, and avoid embellishment or hyperbole. Never alter, destroy, or conceal records.

Furthermore, do not react defensively or with hostility, and do not discuss the case openly during or immediately after the incident; any statements you make may be directly admissible against you or others as evidence. Do not initiate an “incident report” or otherwise “write up” a fellow worker: These documents are business records that will be discoverable by a plaintiff’s attorney, and they can be used against you, the facility, and your peers.

Likewise, the patient’s bedside is not the place for emotional discussions; there, the patient’s well-being must be the only concern. Instead, use the special process that was created to candidly and confidentially discuss matters of patient quality of care: the peer-review process. This process offers an appropriate setting to challenge treatment, question decisions, express remorse or misgivings, and cry, if needed. Ultimately, the peer review process is designed to improve patient care, and the plaintiff’s attorney cannot force disclosure of these discussions. If the plaintiff’s attorney asks questions about the substance of a peer review committee meeting, defense counsel will object on the basis of peer review privilege and block that inquiry.

In sum, should a mistake occur, do not panic. Protect the patient, and plan to discuss the case at a formal closed-door peer review conference. Note: As peer review law varies state by state, be sure that your peer review–related actions fall within your state’s defined scope of privilege. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Excessive Dosing, Inadequate Monitoring Blamed in Death
A 39-year-old man with a history of pain complaints went to a Virginia hospital emergency department (ED) with a migraine. The defendant attending physician ordered IV medications; however, after several unsuccessful attempts to establish an IV line, the treating nurse administered 8 mg hydromorphone intramuscularly (IM). The patient was given a second dose of hydromorphone (6 mg IM) about an hour later before being transferred to a nonemergent room; there, he fell asleep. Loud snoring was noted, but the nurse responsible for monitoring the patient was not alarmed.

The patient then experienced respiratory arrest. Attempts to resuscitate him were unsuccessful.

Plaintiff for the decedent alleged negligence in improperly monitoring him and in failing to recognize signs of distress in a timely fashion. The plaintiff also claimed that the second dose overmedicated the decedent, leading to respiratory arrest. The plaintiff alleged negligence by the attending physician for ordering the second dose of hydromorphone and for transferring the decedent from the ED to a nonemergent room.

The claims against the defendant attending physician went to trial. The defendant claimed that the decedent was stable and showed no signs of acute distress at the time of transfer.

OUTCOME
The hospital settled for a confidential amount prior to trial. According to a published account, a defense verdict was returned in the trial against the attending physician.

COMMENT
This patient was given hydromorphone 8 mg IM at 5:55 am and hydromorphone 6 mg IM at 7:11 am as first-line treatment for migraine. He was discharged from the ED 10 minutes after receiving the second dose and transported to a gastroenterology suite for a previously scheduled colonoscopy. There, he was sparsely monitored, became apneic, and died.

Was the standard of care breached in this case?

The patient appears to have been offered a high-dose narcotic as abortive therapy for migraine, contrary to current recommendations (Gilmore and Michael. Am Fam Physician. 2011;83[3]:271-280). Use of opiates in these circumstances is problematic, and yet opiates are still often prescribed as first-line agents in some practices.

If this were a headache of moderate to severe intensity, triptans would have been the preferred abortive agent. No evidence was presented that this 39-year-old patient had a contraindication to triptans, dihydroergotamine, isometheptene, or intranasal lidocaine. He was given narcotics as first-line treatment for migraine.

Migraine can be extraordinarily painful, and we clinicians are ethically and legally bound to offer the best treatment available to arrest that pain. For most patients, high-dose parenteral narcotics are not favored for the management of migraine because of the potential for precipitating rebound headaches and because opiate dependence can lead to continuing, escalating demands for more narcotic intervention—and worsening headaches.

In this case, the dose of 14 mg of hydromorphone administered over 1 hour and 16 minutes is staggering—even for a patient who is not opiate-naïve. Further, in the IM route of administration (compared with IV), absorption and peak effect are imprecise. Even if the clinician were to argue that the patient’s narcotic tolerance necessitated this dose, the clinician was compelled to ensure that the patient was adequately monitored.

Migraine will become the clinician’s headache if the approach is nonchalant. First, always fully assess a patient with migraine to determine whether the headache is consistent with prior episodes; an atypical presentation may require neuroimaging or an alternate diagnostic approach. Second, always perform a proper examination, even when the headache is described as typical. Third, offer therapeutic interventions that follow evidence-based guidelines. Opiate use should be offered (if at all) at the end of a treatment ­algorithm.

For patients with putative allergies to all abortive treatments other than narcotics, it is wise for a neurologist or pain management group to evaluate the patient and establish a solid, agreed-upon treatment plan. This plan should acknowledge that more appropriate treatment is unavailable, that the patient has been fully informed of the risks and limitations of opiate agents, and that the patient agrees to follow this clearly defined plan.

Like hydromorphone  and other opiate agents, meperidine is another drug with issues. Though still prescribed by some, meperidine is in specific disfavor because of the abuse potential and the risk for seizures induced by normeperidine (a metabolite of meperidine). Its once-touted benefit—avoidance of sphincter of Oddi spasm—is mythical and not a valid reason to keep meperidine stocked. A last highly specialized use may be to treat severe refractory rigors—but it is safe to say that meperidine should be closer to a museum for antiquated medications than to your migraine patient. Jurors will fault clinicians when patients become addicted or have seizures when safer options exist. Don’t use it.

Improve your management of migraine patients and lower your malpractice risk by performing a full assessment and following evidence-based guidelines to choose appropriate agents. In any case in which high-dose narcotics must be administered to abort a high-­intensity migraine, a jury will expect the patient to be carefully monitored for respiratory depression until his/her sensorium is fully cleared following the agent’s peak effect.

Simply put, opiates must not be given in ambulatory settings in which the patient is expected to be discharged after 20 to 30 minutes of observation. This medication is not a flu shot, and the plaintiff’s attorney will hammer this point home if your narcotized migraine patient leaves your practice setting and steps in front of a vehicle. Protect the patient and avoid malpractice risk. —DML

Woman Given Morphine Despite Well-Documented Allergy
A 66-year-old Utah woman underwent surgery at the defendant hospital. The defendant surgeon ordered morphine to be administered following surgery—despite documentation in the patient’s record that she was allergic to morphine, and despite the fact that she was wearing a wristband indicating that she was allergic to morphine. The morphine was administered by hospital nurses over the course of several hours.

The patient became asystolic about 14 hours after receiving the first dose. She was revived but had suffered anoxic brain injury. She died two days later.

The decedent’s son-in-law alleged that he had seen a hospital employee remove the wristband indicating her allergy to morphine and throw it into the wastebasket; the son-in-law retrieved it.

The plaintiffs also claimed that a review of the medical record showed that the word “morphine” had been erased under the section entitled “Allergies.” This was discovered in a comparison of the hospital records with identical records supplied by one of the defendant doctors. In that doctor’s records, the word “morphine” was included.

OUTCOME
According to a published report, a confidential settlement was reached.

COMMENT
Because the settlement was confidential, we don’t know what the payment was—but we can be sure it was substantial.

Jurors abhor attempts to cover up mistakes, even when the jury pool is relatively conservative. Instead of viewing the matter as an error, jurors will impute the worst motives and will exact significant punitive damages. In Utah, for example, where this case occurred, punitive damages are not permitted unless the plaintiff can show by “clear and convincing evidence” that the defendants acted maliciously, with intentional fraudulence, or with reckless indifference toward the rights of others (Utah Code Ann §78-18-1).

This may be a case in which the clinician and staff succumbed to the stress of the moment and acted poorly and unprofessionally. Nevertheless, the staff members’ actions to cover up the mistake, by discarding the patient’s wristband that specified the allergy and erasing the note of the patient’s morphine allergy in the medical record, cause problems far beyond the initial mistake.

Because the malicious act (the cover-up activity) occurred after the fact, it did not directly injure the patient and could not form the basis for punitive damages in a malpractice action. However, the cover-up activity may be the basis for punitive damages for the family’s derivative “intentional infliction of emotional distress” claims. Generally, this type of claim must involve conduct that would prompt the average person hearing the facts to exclaim, “Outrageous!” That test is met here.

If presented with a case that may result in malpractice liability exposure, do not lose your head, blow your cool, or act rashly. Always act in the best interest of the patient and let the record reflect your efforts to protect the patient. Do not use the medical record for defensive discussion out of step with normal charting practices. Chart directly, dispassionately, and professionally, and avoid embellishment or hyperbole. Never alter, destroy, or conceal records.

Furthermore, do not react defensively or with hostility, and do not discuss the case openly during or immediately after the incident; any statements you make may be directly admissible against you or others as evidence. Do not initiate an “incident report” or otherwise “write up” a fellow worker: These documents are business records that will be discoverable by a plaintiff’s attorney, and they can be used against you, the facility, and your peers.

Likewise, the patient’s bedside is not the place for emotional discussions; there, the patient’s well-being must be the only concern. Instead, use the special process that was created to candidly and confidentially discuss matters of patient quality of care: the peer-review process. This process offers an appropriate setting to challenge treatment, question decisions, express remorse or misgivings, and cry, if needed. Ultimately, the peer review process is designed to improve patient care, and the plaintiff’s attorney cannot force disclosure of these discussions. If the plaintiff’s attorney asks questions about the substance of a peer review committee meeting, defense counsel will object on the basis of peer review privilege and block that inquiry.

In sum, should a mistake occur, do not panic. Protect the patient, and plan to discuss the case at a formal closed-door peer review conference. Note: As peer review law varies state by state, be sure that your peer review–related actions fall within your state’s defined scope of privilege. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Excessive Dosing, Inadequate Monitoring Blamed in Death
A 39-year-old man with a history of pain complaints went to a Virginia hospital emergency department (ED) with a migraine. The defendant attending physician ordered IV medications; however, after several unsuccessful attempts to establish an IV line, the treating nurse administered 8 mg hydromorphone intramuscularly (IM). The patient was given a second dose of hydromorphone (6 mg IM) about an hour later before being transferred to a nonemergent room; there, he fell asleep. Loud snoring was noted, but the nurse responsible for monitoring the patient was not alarmed.

The patient then experienced respiratory arrest. Attempts to resuscitate him were unsuccessful.

Plaintiff for the decedent alleged negligence in improperly monitoring him and in failing to recognize signs of distress in a timely fashion. The plaintiff also claimed that the second dose overmedicated the decedent, leading to respiratory arrest. The plaintiff alleged negligence by the attending physician for ordering the second dose of hydromorphone and for transferring the decedent from the ED to a nonemergent room.

The claims against the defendant attending physician went to trial. The defendant claimed that the decedent was stable and showed no signs of acute distress at the time of transfer.

OUTCOME
The hospital settled for a confidential amount prior to trial. According to a published account, a defense verdict was returned in the trial against the attending physician.

COMMENT
This patient was given hydromorphone 8 mg IM at 5:55 am and hydromorphone 6 mg IM at 7:11 am as first-line treatment for migraine. He was discharged from the ED 10 minutes after receiving the second dose and transported to a gastroenterology suite for a previously scheduled colonoscopy. There, he was sparsely monitored, became apneic, and died.

Was the standard of care breached in this case?

The patient appears to have been offered a high-dose narcotic as abortive therapy for migraine, contrary to current recommendations (Gilmore and Michael. Am Fam Physician. 2011;83[3]:271-280). Use of opiates in these circumstances is problematic, and yet opiates are still often prescribed as first-line agents in some practices.

If this were a headache of moderate to severe intensity, triptans would have been the preferred abortive agent. No evidence was presented that this 39-year-old patient had a contraindication to triptans, dihydroergotamine, isometheptene, or intranasal lidocaine. He was given narcotics as first-line treatment for migraine.

Migraine can be extraordinarily painful, and we clinicians are ethically and legally bound to offer the best treatment available to arrest that pain. For most patients, high-dose parenteral narcotics are not favored for the management of migraine because of the potential for precipitating rebound headaches and because opiate dependence can lead to continuing, escalating demands for more narcotic intervention—and worsening headaches.

In this case, the dose of 14 mg of hydromorphone administered over 1 hour and 16 minutes is staggering—even for a patient who is not opiate-naïve. Further, in the IM route of administration (compared with IV), absorption and peak effect are imprecise. Even if the clinician were to argue that the patient’s narcotic tolerance necessitated this dose, the clinician was compelled to ensure that the patient was adequately monitored.

Migraine will become the clinician’s headache if the approach is nonchalant. First, always fully assess a patient with migraine to determine whether the headache is consistent with prior episodes; an atypical presentation may require neuroimaging or an alternate diagnostic approach. Second, always perform a proper examination, even when the headache is described as typical. Third, offer therapeutic interventions that follow evidence-based guidelines. Opiate use should be offered (if at all) at the end of a treatment ­algorithm.

For patients with putative allergies to all abortive treatments other than narcotics, it is wise for a neurologist or pain management group to evaluate the patient and establish a solid, agreed-upon treatment plan. This plan should acknowledge that more appropriate treatment is unavailable, that the patient has been fully informed of the risks and limitations of opiate agents, and that the patient agrees to follow this clearly defined plan.

Like hydromorphone  and other opiate agents, meperidine is another drug with issues. Though still prescribed by some, meperidine is in specific disfavor because of the abuse potential and the risk for seizures induced by normeperidine (a metabolite of meperidine). Its once-touted benefit—avoidance of sphincter of Oddi spasm—is mythical and not a valid reason to keep meperidine stocked. A last highly specialized use may be to treat severe refractory rigors—but it is safe to say that meperidine should be closer to a museum for antiquated medications than to your migraine patient. Jurors will fault clinicians when patients become addicted or have seizures when safer options exist. Don’t use it.

Improve your management of migraine patients and lower your malpractice risk by performing a full assessment and following evidence-based guidelines to choose appropriate agents. In any case in which high-dose narcotics must be administered to abort a high-­intensity migraine, a jury will expect the patient to be carefully monitored for respiratory depression until his/her sensorium is fully cleared following the agent’s peak effect.

Simply put, opiates must not be given in ambulatory settings in which the patient is expected to be discharged after 20 to 30 minutes of observation. This medication is not a flu shot, and the plaintiff’s attorney will hammer this point home if your narcotized migraine patient leaves your practice setting and steps in front of a vehicle. Protect the patient and avoid malpractice risk. —DML

Woman Given Morphine Despite Well-Documented Allergy
A 66-year-old Utah woman underwent surgery at the defendant hospital. The defendant surgeon ordered morphine to be administered following surgery—despite documentation in the patient’s record that she was allergic to morphine, and despite the fact that she was wearing a wristband indicating that she was allergic to morphine. The morphine was administered by hospital nurses over the course of several hours.

The patient became asystolic about 14 hours after receiving the first dose. She was revived but had suffered anoxic brain injury. She died two days later.

The decedent’s son-in-law alleged that he had seen a hospital employee remove the wristband indicating her allergy to morphine and throw it into the wastebasket; the son-in-law retrieved it.

The plaintiffs also claimed that a review of the medical record showed that the word “morphine” had been erased under the section entitled “Allergies.” This was discovered in a comparison of the hospital records with identical records supplied by one of the defendant doctors. In that doctor’s records, the word “morphine” was included.

OUTCOME
According to a published report, a confidential settlement was reached.

COMMENT
Because the settlement was confidential, we don’t know what the payment was—but we can be sure it was substantial.

Jurors abhor attempts to cover up mistakes, even when the jury pool is relatively conservative. Instead of viewing the matter as an error, jurors will impute the worst motives and will exact significant punitive damages. In Utah, for example, where this case occurred, punitive damages are not permitted unless the plaintiff can show by “clear and convincing evidence” that the defendants acted maliciously, with intentional fraudulence, or with reckless indifference toward the rights of others (Utah Code Ann §78-18-1).

This may be a case in which the clinician and staff succumbed to the stress of the moment and acted poorly and unprofessionally. Nevertheless, the staff members’ actions to cover up the mistake, by discarding the patient’s wristband that specified the allergy and erasing the note of the patient’s morphine allergy in the medical record, cause problems far beyond the initial mistake.

Because the malicious act (the cover-up activity) occurred after the fact, it did not directly injure the patient and could not form the basis for punitive damages in a malpractice action. However, the cover-up activity may be the basis for punitive damages for the family’s derivative “intentional infliction of emotional distress” claims. Generally, this type of claim must involve conduct that would prompt the average person hearing the facts to exclaim, “Outrageous!” That test is met here.

If presented with a case that may result in malpractice liability exposure, do not lose your head, blow your cool, or act rashly. Always act in the best interest of the patient and let the record reflect your efforts to protect the patient. Do not use the medical record for defensive discussion out of step with normal charting practices. Chart directly, dispassionately, and professionally, and avoid embellishment or hyperbole. Never alter, destroy, or conceal records.

Furthermore, do not react defensively or with hostility, and do not discuss the case openly during or immediately after the incident; any statements you make may be directly admissible against you or others as evidence. Do not initiate an “incident report” or otherwise “write up” a fellow worker: These documents are business records that will be discoverable by a plaintiff’s attorney, and they can be used against you, the facility, and your peers.

Likewise, the patient’s bedside is not the place for emotional discussions; there, the patient’s well-being must be the only concern. Instead, use the special process that was created to candidly and confidentially discuss matters of patient quality of care: the peer-review process. This process offers an appropriate setting to challenge treatment, question decisions, express remorse or misgivings, and cry, if needed. Ultimately, the peer review process is designed to improve patient care, and the plaintiff’s attorney cannot force disclosure of these discussions. If the plaintiff’s attorney asks questions about the substance of a peer review committee meeting, defense counsel will object on the basis of peer review privilege and block that inquiry.

In sum, should a mistake occur, do not panic. Protect the patient, and plan to discuss the case at a formal closed-door peer review conference. Note: As peer review law varies state by state, be sure that your peer review–related actions fall within your state’s defined scope of privilege. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Seventeen months after undergoing unsuccessful back fusion surgery, a Utah man underwent a repeat procedure, performed by the defendant surgeon. The patient alleged that a surgical technician removed a Hemovac® drain from the incision site as the surgical drapes were removed following the procedure. The drain was allegedly not replaced before the patient was taken to the recovery area.

He complained of numbness and inability to move his legs. The surgeon was notified and advised the hospital staff to continue monitoring the patient. When the problems persisted, he was returned to surgery. The surgeon found a large hematoma and removed several hundred cc’s of blood.

Since then, the patient has had continuing problems despite treatment with steroids and physical therapy, and following a 10-month stay in a skilled nursing facility. The patient is essentially paralyzed from the waist down and confined for the most part to a wheelchair.

The plaintiff alleged that he was not a suitable candidate for the second back fusion in light of his previous unsuccessful surgery. The plaintiff also claimed that removal of the drain allowed the hematoma to develop, causing compression and damage to the spinal nerves.

OUTCOME
According to a published account, a confidential settlement was reached with the hospital. Claims against the surgeon and a PA were pending.

COMMENT
It is important for every member of the surgical team to know the number and location of surgical drains and to monitor drainage output. Here, removal of a drain resulted in the formation of a large hematoma, which caused compressive damage to the spinal nerves.

We don’t know when the patient developed symptoms or how soon he was reevaluated by the surgical team. We do know there was a delay between the patient’s first report of symptoms and the operation to evacuate the hematoma.

The legal case names the hospital, the physician, and a PA as defendants. The hospital has liability for the actions of the surgical technician, provided this employee is generally operating within the scope of his or her employment.

The confidential settlement with the hospital permits the plaintiff to recover against the hospital for the technician’s removal of the drain, while pursuing different claims against the surgeon and the PA. Presumptively, these breaches in the standard of care against the clinicians would be a failure to supervise the clinical staff, failure to anchor the drain (perhaps), failure to adequately monitor the patient postoperatively, and failure to act on the patient’s deteriorating status in a timely fashion. 

Under the best circumstances, jurors expect surgeons to make a personal appearance shortly after surgery. In the case of complications, jurors expect an immediate and reassuring presence. It may be impossible for the surgeon to visit the patient’s bedside immediately—making communication between the surgical team and the surgical nursing staff imperative.

Essentially, this patient has lost the use of his legs and is wheelchair dependent, making substantial damages possible. The case will turn on whether the jurors believe the surgeon and the PA were adequately responsive to the patient’s condition. They will likely consider factors such as the time interval between the patient’s first complaint and the operation to evacuate the hematoma, and the communication between the surgical team and the surgical nurses, to determine whether the clinicians were appropriately responsive. In sum, surgical clinicians should have well-oiled mechanisms in place to manage low-risk, expected complications, and to investigate atypical or serious complications quickly and personally.  —DML        

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Seventeen months after undergoing unsuccessful back fusion surgery, a Utah man underwent a repeat procedure, performed by the defendant surgeon. The patient alleged that a surgical technician removed a Hemovac® drain from the incision site as the surgical drapes were removed following the procedure. The drain was allegedly not replaced before the patient was taken to the recovery area.

He complained of numbness and inability to move his legs. The surgeon was notified and advised the hospital staff to continue monitoring the patient. When the problems persisted, he was returned to surgery. The surgeon found a large hematoma and removed several hundred cc’s of blood.

Since then, the patient has had continuing problems despite treatment with steroids and physical therapy, and following a 10-month stay in a skilled nursing facility. The patient is essentially paralyzed from the waist down and confined for the most part to a wheelchair.

The plaintiff alleged that he was not a suitable candidate for the second back fusion in light of his previous unsuccessful surgery. The plaintiff also claimed that removal of the drain allowed the hematoma to develop, causing compression and damage to the spinal nerves.

OUTCOME
According to a published account, a confidential settlement was reached with the hospital. Claims against the surgeon and a PA were pending.

COMMENT
It is important for every member of the surgical team to know the number and location of surgical drains and to monitor drainage output. Here, removal of a drain resulted in the formation of a large hematoma, which caused compressive damage to the spinal nerves.

We don’t know when the patient developed symptoms or how soon he was reevaluated by the surgical team. We do know there was a delay between the patient’s first report of symptoms and the operation to evacuate the hematoma.

The legal case names the hospital, the physician, and a PA as defendants. The hospital has liability for the actions of the surgical technician, provided this employee is generally operating within the scope of his or her employment.

The confidential settlement with the hospital permits the plaintiff to recover against the hospital for the technician’s removal of the drain, while pursuing different claims against the surgeon and the PA. Presumptively, these breaches in the standard of care against the clinicians would be a failure to supervise the clinical staff, failure to anchor the drain (perhaps), failure to adequately monitor the patient postoperatively, and failure to act on the patient’s deteriorating status in a timely fashion. 

Under the best circumstances, jurors expect surgeons to make a personal appearance shortly after surgery. In the case of complications, jurors expect an immediate and reassuring presence. It may be impossible for the surgeon to visit the patient’s bedside immediately—making communication between the surgical team and the surgical nursing staff imperative.

Essentially, this patient has lost the use of his legs and is wheelchair dependent, making substantial damages possible. The case will turn on whether the jurors believe the surgeon and the PA were adequately responsive to the patient’s condition. They will likely consider factors such as the time interval between the patient’s first complaint and the operation to evacuate the hematoma, and the communication between the surgical team and the surgical nurses, to determine whether the clinicians were appropriately responsive. In sum, surgical clinicians should have well-oiled mechanisms in place to manage low-risk, expected complications, and to investigate atypical or serious complications quickly and personally.  —DML        

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Seventeen months after undergoing unsuccessful back fusion surgery, a Utah man underwent a repeat procedure, performed by the defendant surgeon. The patient alleged that a surgical technician removed a Hemovac® drain from the incision site as the surgical drapes were removed following the procedure. The drain was allegedly not replaced before the patient was taken to the recovery area.

He complained of numbness and inability to move his legs. The surgeon was notified and advised the hospital staff to continue monitoring the patient. When the problems persisted, he was returned to surgery. The surgeon found a large hematoma and removed several hundred cc’s of blood.

Since then, the patient has had continuing problems despite treatment with steroids and physical therapy, and following a 10-month stay in a skilled nursing facility. The patient is essentially paralyzed from the waist down and confined for the most part to a wheelchair.

The plaintiff alleged that he was not a suitable candidate for the second back fusion in light of his previous unsuccessful surgery. The plaintiff also claimed that removal of the drain allowed the hematoma to develop, causing compression and damage to the spinal nerves.

OUTCOME
According to a published account, a confidential settlement was reached with the hospital. Claims against the surgeon and a PA were pending.

COMMENT
It is important for every member of the surgical team to know the number and location of surgical drains and to monitor drainage output. Here, removal of a drain resulted in the formation of a large hematoma, which caused compressive damage to the spinal nerves.

We don’t know when the patient developed symptoms or how soon he was reevaluated by the surgical team. We do know there was a delay between the patient’s first report of symptoms and the operation to evacuate the hematoma.

The legal case names the hospital, the physician, and a PA as defendants. The hospital has liability for the actions of the surgical technician, provided this employee is generally operating within the scope of his or her employment.

The confidential settlement with the hospital permits the plaintiff to recover against the hospital for the technician’s removal of the drain, while pursuing different claims against the surgeon and the PA. Presumptively, these breaches in the standard of care against the clinicians would be a failure to supervise the clinical staff, failure to anchor the drain (perhaps), failure to adequately monitor the patient postoperatively, and failure to act on the patient’s deteriorating status in a timely fashion. 

Under the best circumstances, jurors expect surgeons to make a personal appearance shortly after surgery. In the case of complications, jurors expect an immediate and reassuring presence. It may be impossible for the surgeon to visit the patient’s bedside immediately—making communication between the surgical team and the surgical nursing staff imperative.

Essentially, this patient has lost the use of his legs and is wheelchair dependent, making substantial damages possible. The case will turn on whether the jurors believe the surgeon and the PA were adequately responsive to the patient’s condition. They will likely consider factors such as the time interval between the patient’s first complaint and the operation to evacuate the hematoma, and the communication between the surgical team and the surgical nurses, to determine whether the clinicians were appropriately responsive. In sum, surgical clinicians should have well-oiled mechanisms in place to manage low-risk, expected complications, and to investigate atypical or serious complications quickly and personally.  —DML        

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Undiluted Acetic Acid Used for Surgery on Vulvar Lesion
The patient, a 42-year-old Ohio woman, was scheduled for a

gynecologic surgical procedure. The surgery was to be performed in the hospital by a general practice obstetrician/gynecologist for treatment of low-grade squamous intraepithelial lesions (ie, vulvar intraepithelial neoplasm [VIN] with moderate dysplasia). The planned procedure was a wide local excision of the vulvar lesions, to be performed under general anesthesia.

The procedure typically includes application of a diluted acetic acid wash to the vulvar area to delineate the borders of the dysplastic areas. Instead of the diluted solution, however, a highly concentrated acetic acid, trichloroacetic acid (TCA), was used.

The patient sustained a severe chemical burn of the vulva, which took several months to heal. She was left with permanent scarring of the vulvar area and extreme tenderness at the vaginal opening, which is atrophic and severely reddened and discolored. The patient has a band of thick scar tissue at the posterior fourchette, and she also sustained burning and severe scarring of the perineum that extends to the anal area, including a 2-mm plaque layer.

The plaintiff claimed that her injuries limited her to extremely painful sexual intercourse (if any), as well as discomfort at all times. Only a complicated set of additional surgical procedures could be recommended to attempt to alleviate her condition and allow relatively pain-free intercourse.

OUTCOME
A $600,000 settlement was reached in direct negotiations with the risk management department of the hospital in question.

COMMENT
This case settled before trial after direct negotiations with the hospital’s risk management department, which is unusual; cases are typically turned over to trial counsel after a case is initiated.

Jurors take a harsh view of such mix-ups, expecting simple safety precautions, like clear labeling, to prevent devastating outcomes.

The negotiated settlement is rather low, given the patient’s pain and demonstrable losses. Ohio has a damages cap on noneconomic damages (eg, pain and suffering, vs economic damages, such as loss of income). Ohio also has a cap on punitive damages—which is double the cap on compensatory damages. In a different jurisdiction without these caps, the defendant hospital’s exposure to larger damages would have been greater.

Clinicians must take an active role to prevent such outcomes. Any substance used in a clinical setting should be clearly labeled. Items not suitable for direct patient use (eg, undiluted acetic acid) should never be brought into the examining room or the operating room. Clinicians should actively monitor support personnel to detect practices that could result in an accident.

Our role as clinicians is to protect the patient: That includes monitoring our practice environment for patterns that could result in accidents (eg, slip and fall), errors (medication administered to the incorrect patient), or unclear accountability (lab values not reviewed in a timely manner). Stay vigilant and work within your team practice environment to spot and correct problems before those problems ripen into errors that may injure patients and land clinicians in court. —DML

Excessive Epinephrine Injection Causes Cardiac Arrest
An Idaho woman, age 39, was to undergo an arthroscopic shoulder procedure in February 2007 at a specialty hospital. Prior to surgery, the patient was mistakenly given an injection of 9 cc epinephrine at a concentration of 1:1,000 instead of the ordered presurgical injection—a diluted concentration of epinephrine 1:200,000, combined with bupivacaine. The patient went into full cardiac arrest and was subsequently diagnosed with a mild brain injury resulting from the lengthy code conducted at the hospital.

The plaintiff claimed that the hospital’s use of 30-mL multidose vials of concentrated epinephrine 1:1,000 in the operating room heightened the risk for medication error. The plaintiff also claimed that the circulating nurse failed to properly label the syringe containing the medication and that the circulating nurse failed to properly run a time-out procedure prior to the medication error.

The defendant claimed that the presence of multidose vials of concentrated epinephrine in the operating room was proper and that the syringe used to inject the plaintiff was properly labeled. The defendant also claimed that a time-out had been properly conducted prior to the medication error.

OUTCOME
According to a published account, a $760,000 verdict was returned. The plaintiff had settled the claim against the orthopedic group prior to trial for a confidential amount and had entered into a high-low agreement with the hospital ($750,000/$500,000) minutes before the verdict was returned.

COMMENT
As in the previous case, this action involves the unintended use of a substance (epinephrine 1:1,000) that bears some similarity to the correct substance (bupivacaine with epinephrine 1:200,000). There was disagreement as to whether the syringe was properly labeled.

Here, the case was settled against the orthopedic surgeon. The hospital has vicarious liability for the circulating nurse as an employee of the hospital. The plaintiff alleged that the use of the multidose vial was risky, and that the nurse did not perform an adequate time-out procedure before the error. This procedure is designed to give nurses protected time, free from other distractions, within which to manage and administer medications. The concept of protected time seeks to minimize errors of medication administration by giving nurses dedicated time to concentrate only on medications without the usual distractions from clinicians, other patients, telephone calls, pages, and the like. This is important, because a clinician’s prescribing or ordering error is often detected (by pharmacists or nurses, respectively). Generally, when a nurse administers a medication, there is no automatic “second pair of eyes” to review his or her action.

In this instance, however, the opposite situation existed: The nurse prepared the medication, and the physician administered it. The plaintiff’s contention was that the nurse mislabeled the medication, and the plaintiff was able to prevail at trial on this theory.

Interestingly, the plaintiff likely took the opposite position with the physician to obtain settlement before trial—that is, that the nurse correctly labeled the syringe, but it was inappropriately administered by the physician. After settling with the physician, the plaintiff was free to change the theory of the case—placing blame with the nurse and hospital. At trial, with an injured plaintiff and no clinician to blame, the jury found the plaintiff’s position credible and found the nurse responsible.

If there was no indication for 9 mL of epinephrine 1:1,000 to be placed on a tray next to bupivacaine with epinephrine 1:200,000, the jury would believe the medication was mislabeled. While epinephrine is often used to increase visualization during arthroscopic surgery, it is typically added to the irrigation solution (eg, 1 mL epinephrine 1:1,000 added to 3,000 mL of irrigation fluid). From the facts given, it is unclear whether the undiluted epinephrine 1:1,000 was kept within the surgeon’s reach. If so, this was a dangerous practice pattern that could have been recognized and the outcome prevented.

Confusion can lead to use of an incorrect concentration of the correct medication. This is particularly true with epinephrine—a substance with a built-in, tenfold fatal error potential. Epinephrine 1:1,000 (generally used for subcutaneous administration) can have disastrous consequences when given in place of epinephrine 1:10,000 (generally administered by IV). Several fatal and near-fatal cases have been reported involving this error. Epinephrine 1:1,000 in 30-mL vials has been specified for its overdose potential. Consider replacing these vials with 1-mL ampoules, and if this is not feasible, consider applying a warning label: “not for IV use without appropriate dilution.”

In cases in which similar medications are used in close proximity, consider applying a use-based label in addition to that showing dosing/concentration. For example, try labeling the syringe of epinephrine 1:1,000 “for subcutaneous/endotracheal use only” versus epinephrine 1:10,000, “for intravenous use.”

In whatever setting you practice, do your part to ensure that staff is specifically alerted to the hazard of potentially fatal epinephrine concentration errors. A life saved by preventing an error is a life saved.   —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Undiluted Acetic Acid Used for Surgery on Vulvar Lesion
The patient, a 42-year-old Ohio woman, was scheduled for a

gynecologic surgical procedure. The surgery was to be performed in the hospital by a general practice obstetrician/gynecologist for treatment of low-grade squamous intraepithelial lesions (ie, vulvar intraepithelial neoplasm [VIN] with moderate dysplasia). The planned procedure was a wide local excision of the vulvar lesions, to be performed under general anesthesia.

The procedure typically includes application of a diluted acetic acid wash to the vulvar area to delineate the borders of the dysplastic areas. Instead of the diluted solution, however, a highly concentrated acetic acid, trichloroacetic acid (TCA), was used.

The patient sustained a severe chemical burn of the vulva, which took several months to heal. She was left with permanent scarring of the vulvar area and extreme tenderness at the vaginal opening, which is atrophic and severely reddened and discolored. The patient has a band of thick scar tissue at the posterior fourchette, and she also sustained burning and severe scarring of the perineum that extends to the anal area, including a 2-mm plaque layer.

The plaintiff claimed that her injuries limited her to extremely painful sexual intercourse (if any), as well as discomfort at all times. Only a complicated set of additional surgical procedures could be recommended to attempt to alleviate her condition and allow relatively pain-free intercourse.

OUTCOME
A $600,000 settlement was reached in direct negotiations with the risk management department of the hospital in question.

COMMENT
This case settled before trial after direct negotiations with the hospital’s risk management department, which is unusual; cases are typically turned over to trial counsel after a case is initiated.

Jurors take a harsh view of such mix-ups, expecting simple safety precautions, like clear labeling, to prevent devastating outcomes.

The negotiated settlement is rather low, given the patient’s pain and demonstrable losses. Ohio has a damages cap on noneconomic damages (eg, pain and suffering, vs economic damages, such as loss of income). Ohio also has a cap on punitive damages—which is double the cap on compensatory damages. In a different jurisdiction without these caps, the defendant hospital’s exposure to larger damages would have been greater.

Clinicians must take an active role to prevent such outcomes. Any substance used in a clinical setting should be clearly labeled. Items not suitable for direct patient use (eg, undiluted acetic acid) should never be brought into the examining room or the operating room. Clinicians should actively monitor support personnel to detect practices that could result in an accident.

Our role as clinicians is to protect the patient: That includes monitoring our practice environment for patterns that could result in accidents (eg, slip and fall), errors (medication administered to the incorrect patient), or unclear accountability (lab values not reviewed in a timely manner). Stay vigilant and work within your team practice environment to spot and correct problems before those problems ripen into errors that may injure patients and land clinicians in court. —DML

Excessive Epinephrine Injection Causes Cardiac Arrest
An Idaho woman, age 39, was to undergo an arthroscopic shoulder procedure in February 2007 at a specialty hospital. Prior to surgery, the patient was mistakenly given an injection of 9 cc epinephrine at a concentration of 1:1,000 instead of the ordered presurgical injection—a diluted concentration of epinephrine 1:200,000, combined with bupivacaine. The patient went into full cardiac arrest and was subsequently diagnosed with a mild brain injury resulting from the lengthy code conducted at the hospital.

The plaintiff claimed that the hospital’s use of 30-mL multidose vials of concentrated epinephrine 1:1,000 in the operating room heightened the risk for medication error. The plaintiff also claimed that the circulating nurse failed to properly label the syringe containing the medication and that the circulating nurse failed to properly run a time-out procedure prior to the medication error.

The defendant claimed that the presence of multidose vials of concentrated epinephrine in the operating room was proper and that the syringe used to inject the plaintiff was properly labeled. The defendant also claimed that a time-out had been properly conducted prior to the medication error.

OUTCOME
According to a published account, a $760,000 verdict was returned. The plaintiff had settled the claim against the orthopedic group prior to trial for a confidential amount and had entered into a high-low agreement with the hospital ($750,000/$500,000) minutes before the verdict was returned.

COMMENT
As in the previous case, this action involves the unintended use of a substance (epinephrine 1:1,000) that bears some similarity to the correct substance (bupivacaine with epinephrine 1:200,000). There was disagreement as to whether the syringe was properly labeled.

Here, the case was settled against the orthopedic surgeon. The hospital has vicarious liability for the circulating nurse as an employee of the hospital. The plaintiff alleged that the use of the multidose vial was risky, and that the nurse did not perform an adequate time-out procedure before the error. This procedure is designed to give nurses protected time, free from other distractions, within which to manage and administer medications. The concept of protected time seeks to minimize errors of medication administration by giving nurses dedicated time to concentrate only on medications without the usual distractions from clinicians, other patients, telephone calls, pages, and the like. This is important, because a clinician’s prescribing or ordering error is often detected (by pharmacists or nurses, respectively). Generally, when a nurse administers a medication, there is no automatic “second pair of eyes” to review his or her action.

In this instance, however, the opposite situation existed: The nurse prepared the medication, and the physician administered it. The plaintiff’s contention was that the nurse mislabeled the medication, and the plaintiff was able to prevail at trial on this theory.

Interestingly, the plaintiff likely took the opposite position with the physician to obtain settlement before trial—that is, that the nurse correctly labeled the syringe, but it was inappropriately administered by the physician. After settling with the physician, the plaintiff was free to change the theory of the case—placing blame with the nurse and hospital. At trial, with an injured plaintiff and no clinician to blame, the jury found the plaintiff’s position credible and found the nurse responsible.

If there was no indication for 9 mL of epinephrine 1:1,000 to be placed on a tray next to bupivacaine with epinephrine 1:200,000, the jury would believe the medication was mislabeled. While epinephrine is often used to increase visualization during arthroscopic surgery, it is typically added to the irrigation solution (eg, 1 mL epinephrine 1:1,000 added to 3,000 mL of irrigation fluid). From the facts given, it is unclear whether the undiluted epinephrine 1:1,000 was kept within the surgeon’s reach. If so, this was a dangerous practice pattern that could have been recognized and the outcome prevented.

Confusion can lead to use of an incorrect concentration of the correct medication. This is particularly true with epinephrine—a substance with a built-in, tenfold fatal error potential. Epinephrine 1:1,000 (generally used for subcutaneous administration) can have disastrous consequences when given in place of epinephrine 1:10,000 (generally administered by IV). Several fatal and near-fatal cases have been reported involving this error. Epinephrine 1:1,000 in 30-mL vials has been specified for its overdose potential. Consider replacing these vials with 1-mL ampoules, and if this is not feasible, consider applying a warning label: “not for IV use without appropriate dilution.”

In cases in which similar medications are used in close proximity, consider applying a use-based label in addition to that showing dosing/concentration. For example, try labeling the syringe of epinephrine 1:1,000 “for subcutaneous/endotracheal use only” versus epinephrine 1:10,000, “for intravenous use.”

In whatever setting you practice, do your part to ensure that staff is specifically alerted to the hazard of potentially fatal epinephrine concentration errors. A life saved by preventing an error is a life saved.   —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Undiluted Acetic Acid Used for Surgery on Vulvar Lesion
The patient, a 42-year-old Ohio woman, was scheduled for a

gynecologic surgical procedure. The surgery was to be performed in the hospital by a general practice obstetrician/gynecologist for treatment of low-grade squamous intraepithelial lesions (ie, vulvar intraepithelial neoplasm [VIN] with moderate dysplasia). The planned procedure was a wide local excision of the vulvar lesions, to be performed under general anesthesia.

The procedure typically includes application of a diluted acetic acid wash to the vulvar area to delineate the borders of the dysplastic areas. Instead of the diluted solution, however, a highly concentrated acetic acid, trichloroacetic acid (TCA), was used.

The patient sustained a severe chemical burn of the vulva, which took several months to heal. She was left with permanent scarring of the vulvar area and extreme tenderness at the vaginal opening, which is atrophic and severely reddened and discolored. The patient has a band of thick scar tissue at the posterior fourchette, and she also sustained burning and severe scarring of the perineum that extends to the anal area, including a 2-mm plaque layer.

The plaintiff claimed that her injuries limited her to extremely painful sexual intercourse (if any), as well as discomfort at all times. Only a complicated set of additional surgical procedures could be recommended to attempt to alleviate her condition and allow relatively pain-free intercourse.

OUTCOME
A $600,000 settlement was reached in direct negotiations with the risk management department of the hospital in question.

COMMENT
This case settled before trial after direct negotiations with the hospital’s risk management department, which is unusual; cases are typically turned over to trial counsel after a case is initiated.

Jurors take a harsh view of such mix-ups, expecting simple safety precautions, like clear labeling, to prevent devastating outcomes.

The negotiated settlement is rather low, given the patient’s pain and demonstrable losses. Ohio has a damages cap on noneconomic damages (eg, pain and suffering, vs economic damages, such as loss of income). Ohio also has a cap on punitive damages—which is double the cap on compensatory damages. In a different jurisdiction without these caps, the defendant hospital’s exposure to larger damages would have been greater.

Clinicians must take an active role to prevent such outcomes. Any substance used in a clinical setting should be clearly labeled. Items not suitable for direct patient use (eg, undiluted acetic acid) should never be brought into the examining room or the operating room. Clinicians should actively monitor support personnel to detect practices that could result in an accident.

Our role as clinicians is to protect the patient: That includes monitoring our practice environment for patterns that could result in accidents (eg, slip and fall), errors (medication administered to the incorrect patient), or unclear accountability (lab values not reviewed in a timely manner). Stay vigilant and work within your team practice environment to spot and correct problems before those problems ripen into errors that may injure patients and land clinicians in court. —DML

Excessive Epinephrine Injection Causes Cardiac Arrest
An Idaho woman, age 39, was to undergo an arthroscopic shoulder procedure in February 2007 at a specialty hospital. Prior to surgery, the patient was mistakenly given an injection of 9 cc epinephrine at a concentration of 1:1,000 instead of the ordered presurgical injection—a diluted concentration of epinephrine 1:200,000, combined with bupivacaine. The patient went into full cardiac arrest and was subsequently diagnosed with a mild brain injury resulting from the lengthy code conducted at the hospital.

The plaintiff claimed that the hospital’s use of 30-mL multidose vials of concentrated epinephrine 1:1,000 in the operating room heightened the risk for medication error. The plaintiff also claimed that the circulating nurse failed to properly label the syringe containing the medication and that the circulating nurse failed to properly run a time-out procedure prior to the medication error.

The defendant claimed that the presence of multidose vials of concentrated epinephrine in the operating room was proper and that the syringe used to inject the plaintiff was properly labeled. The defendant also claimed that a time-out had been properly conducted prior to the medication error.

OUTCOME
According to a published account, a $760,000 verdict was returned. The plaintiff had settled the claim against the orthopedic group prior to trial for a confidential amount and had entered into a high-low agreement with the hospital ($750,000/$500,000) minutes before the verdict was returned.

COMMENT
As in the previous case, this action involves the unintended use of a substance (epinephrine 1:1,000) that bears some similarity to the correct substance (bupivacaine with epinephrine 1:200,000). There was disagreement as to whether the syringe was properly labeled.

Here, the case was settled against the orthopedic surgeon. The hospital has vicarious liability for the circulating nurse as an employee of the hospital. The plaintiff alleged that the use of the multidose vial was risky, and that the nurse did not perform an adequate time-out procedure before the error. This procedure is designed to give nurses protected time, free from other distractions, within which to manage and administer medications. The concept of protected time seeks to minimize errors of medication administration by giving nurses dedicated time to concentrate only on medications without the usual distractions from clinicians, other patients, telephone calls, pages, and the like. This is important, because a clinician’s prescribing or ordering error is often detected (by pharmacists or nurses, respectively). Generally, when a nurse administers a medication, there is no automatic “second pair of eyes” to review his or her action.

In this instance, however, the opposite situation existed: The nurse prepared the medication, and the physician administered it. The plaintiff’s contention was that the nurse mislabeled the medication, and the plaintiff was able to prevail at trial on this theory.

Interestingly, the plaintiff likely took the opposite position with the physician to obtain settlement before trial—that is, that the nurse correctly labeled the syringe, but it was inappropriately administered by the physician. After settling with the physician, the plaintiff was free to change the theory of the case—placing blame with the nurse and hospital. At trial, with an injured plaintiff and no clinician to blame, the jury found the plaintiff’s position credible and found the nurse responsible.

If there was no indication for 9 mL of epinephrine 1:1,000 to be placed on a tray next to bupivacaine with epinephrine 1:200,000, the jury would believe the medication was mislabeled. While epinephrine is often used to increase visualization during arthroscopic surgery, it is typically added to the irrigation solution (eg, 1 mL epinephrine 1:1,000 added to 3,000 mL of irrigation fluid). From the facts given, it is unclear whether the undiluted epinephrine 1:1,000 was kept within the surgeon’s reach. If so, this was a dangerous practice pattern that could have been recognized and the outcome prevented.

Confusion can lead to use of an incorrect concentration of the correct medication. This is particularly true with epinephrine—a substance with a built-in, tenfold fatal error potential. Epinephrine 1:1,000 (generally used for subcutaneous administration) can have disastrous consequences when given in place of epinephrine 1:10,000 (generally administered by IV). Several fatal and near-fatal cases have been reported involving this error. Epinephrine 1:1,000 in 30-mL vials has been specified for its overdose potential. Consider replacing these vials with 1-mL ampoules, and if this is not feasible, consider applying a warning label: “not for IV use without appropriate dilution.”

In cases in which similar medications are used in close proximity, consider applying a use-based label in addition to that showing dosing/concentration. For example, try labeling the syringe of epinephrine 1:1,000 “for subcutaneous/endotracheal use only” versus epinephrine 1:10,000, “for intravenous use.”

In whatever setting you practice, do your part to ensure that staff is specifically alerted to the hazard of potentially fatal epinephrine concentration errors. A life saved by preventing an error is a life saved.   —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Two Fundoplications Lead to Nerve Damage
A 13-year-old girl underwent surgery for intractable gastroesophageal reflux disease (GERD) in March 1999. The procedure involved the creation of a Nissen fundoplication, which was intended to tighten the esophagus’s lower sphincter. The surgery was performed by pediatrician Dr. S. with assistance from gastroenterologist Dr. N. at a major medical center.

The fundoplication subsequently unraveled, so in December 2000, the physicians recreated it. The patient subsequently developed gastroparesis.

The plaintiff claimed that improper performance of the fundoplications was to blame for the gastroparesis. She subsequently underwent seven surgeries, including the implantation of a pacemaker to control her gastrointestinal functions. The plaintiff also argued that her GERD had not resolved, which impaired her respiration and caused her to require continuous use of supplemental oxygen. The plaintiff also now receives nutrition by tube.

The matter proceeded to trial against both doctors and the medical center. The gastroenterologist, however, was dismissed when evidence showed that the pediatrician, Dr. S., was the primary performer of the fundoplications.

The plaintiff claimed that the failure of the initial fundoplication was due to the use of 3-0 absorbable sutures, when 2-0 nonabsorbable sutures should have been used. The plaintiff claimed that the nonabsorbable sutures were stronger. The plaintiff claimed that during the second fundoplication, a suture was improperly applied, damaging a portion of the vagus nerve. The plaintiff claimed that Dr. S. failed to identify and protect the nerve.

The defendants claimed that while 2-0 sutures are typically used in fundoplications, the 3-0 sutures were acceptable, and that identification and preservation of the vagus nerve was not required. The defendant also maintained that the vagus nerve was not damaged, but that the gastroparesis was due to an unrelated abnormality of the plaintiff’s metabolic process.

OUTCOME
According to a published account, a jury found Dr. S. negligent and awarded $60 million. An appeal was expected.

COMMENT
Medical malpractice awards can be astronomical, particularly when complications so substantially degrade a young patient’s quality of life. That said, damage to the vagus nerve is an accepted risk of a Nissen fundoplication. So how is it that a known risk of a surgery can result in the largest verdict awarded in New York in 2011?

Most lay jurors would recognize that the essential goal of a Nissen fundoplication for GERD is to improve symptoms by making structural changes to the lower esophagus and stomach. Jurors would believe it clearly foreseeable that the surgery would “fall apart” over time and regard the use of smaller dissolvable sutures as obvious error. In fact, the surgeon’s own expert acknowledged that fundoplications are typically secured with 2-0 nonabsorbable sutures and the defendant surgeon utilized 3-0 absorbable sutures. In the eyes of most jurors, this would have essentially served as an admission of liability.

Once the jurors were convinced of “shoddy workmanship” in the first surgery, they would have little trouble finding that the surgeon damaged the vagus nerve in the second. The surgeon defended on the grounds that the standard of care did not require the vagus nerve to be identified and preserved. This argument may have inflamed the jury, who will regard failure to look out for the nerve as wantonly reckless.

Further, the defendant’s claim that the patient’s gastroparesis was due to an “unrelated abnormality of her metabolic process” likely raised the ire of the jurors, who may have considered such an argument an unbelievable attempt to skirt responsibility for the outcome.

The jury may have been incensed that the surgeon chose the wrong size suture, used the wrong material, didn’t even bother to look for important nerves, and then sought to “blame the patient” for the subsequent surgeries, her need for continuous supplemental oxygen, and need for tube feeding.

As a matter of legal strategy, the surgeon’s attorneys should have considered a bifurcated trial (one in which the liability and damages are separated into, essentially, two mini-trials). This is sometimes done in medical malpractice cases because jurors can become overwhelmed with sympathy at the plaintiff’s plight, and then be unable to fairly judge whether or not the clinician made a mistake in the first place.

Second, defense counsel should have considered admitting liability in the first surgery. Why do this? By admitting liability for the first surgery, the defense should have been able to block damaging evidence of the first surgery (suture size and absorbability) from being presented in a trial dealing with the second surgery.

Why is this fair? Because the ultimate issue in this case was whether or not the vagus nerve was injured in the second surgery—not whether better material could have been chosen for the first. By contesting liability for the first surgery, defense counsel permitted the jurors to hear prejudicial evidence of arguably “shoddy workmanship,” which was irrelevant in determining whether or not the vagus nerve was injured during the second surgery.

What lessons can be learned from this substantial verdict? All aspects of a surgical technique should be supported by the standard of care. Where there are choices in operative or procedural technique, ensure that the chosen technique has a foundation in defensible evidence-based medicine. Jurors will expect clinicians to identify and preserve sensitive structures. While inadvertent damage to nearby structures may be a risk inherent in certain procedures, jurors expect the utmost care in protecting those structures.

Candidly, jurors will likely find the clinician responsible for an intra-operative iatrogenic injury. The consent form disclosing “known risks” is necessary, but at time of trial, it will not be an impenetrable shield. Proceed carefully and thoughtfully, with support from evidence-based literature whenever possible. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Two Fundoplications Lead to Nerve Damage
A 13-year-old girl underwent surgery for intractable gastroesophageal reflux disease (GERD) in March 1999. The procedure involved the creation of a Nissen fundoplication, which was intended to tighten the esophagus’s lower sphincter. The surgery was performed by pediatrician Dr. S. with assistance from gastroenterologist Dr. N. at a major medical center.

The fundoplication subsequently unraveled, so in December 2000, the physicians recreated it. The patient subsequently developed gastroparesis.

The plaintiff claimed that improper performance of the fundoplications was to blame for the gastroparesis. She subsequently underwent seven surgeries, including the implantation of a pacemaker to control her gastrointestinal functions. The plaintiff also argued that her GERD had not resolved, which impaired her respiration and caused her to require continuous use of supplemental oxygen. The plaintiff also now receives nutrition by tube.

The matter proceeded to trial against both doctors and the medical center. The gastroenterologist, however, was dismissed when evidence showed that the pediatrician, Dr. S., was the primary performer of the fundoplications.

The plaintiff claimed that the failure of the initial fundoplication was due to the use of 3-0 absorbable sutures, when 2-0 nonabsorbable sutures should have been used. The plaintiff claimed that the nonabsorbable sutures were stronger. The plaintiff claimed that during the second fundoplication, a suture was improperly applied, damaging a portion of the vagus nerve. The plaintiff claimed that Dr. S. failed to identify and protect the nerve.

The defendants claimed that while 2-0 sutures are typically used in fundoplications, the 3-0 sutures were acceptable, and that identification and preservation of the vagus nerve was not required. The defendant also maintained that the vagus nerve was not damaged, but that the gastroparesis was due to an unrelated abnormality of the plaintiff’s metabolic process.

OUTCOME
According to a published account, a jury found Dr. S. negligent and awarded $60 million. An appeal was expected.

COMMENT
Medical malpractice awards can be astronomical, particularly when complications so substantially degrade a young patient’s quality of life. That said, damage to the vagus nerve is an accepted risk of a Nissen fundoplication. So how is it that a known risk of a surgery can result in the largest verdict awarded in New York in 2011?

Most lay jurors would recognize that the essential goal of a Nissen fundoplication for GERD is to improve symptoms by making structural changes to the lower esophagus and stomach. Jurors would believe it clearly foreseeable that the surgery would “fall apart” over time and regard the use of smaller dissolvable sutures as obvious error. In fact, the surgeon’s own expert acknowledged that fundoplications are typically secured with 2-0 nonabsorbable sutures and the defendant surgeon utilized 3-0 absorbable sutures. In the eyes of most jurors, this would have essentially served as an admission of liability.

Once the jurors were convinced of “shoddy workmanship” in the first surgery, they would have little trouble finding that the surgeon damaged the vagus nerve in the second. The surgeon defended on the grounds that the standard of care did not require the vagus nerve to be identified and preserved. This argument may have inflamed the jury, who will regard failure to look out for the nerve as wantonly reckless.

Further, the defendant’s claim that the patient’s gastroparesis was due to an “unrelated abnormality of her metabolic process” likely raised the ire of the jurors, who may have considered such an argument an unbelievable attempt to skirt responsibility for the outcome.

The jury may have been incensed that the surgeon chose the wrong size suture, used the wrong material, didn’t even bother to look for important nerves, and then sought to “blame the patient” for the subsequent surgeries, her need for continuous supplemental oxygen, and need for tube feeding.

As a matter of legal strategy, the surgeon’s attorneys should have considered a bifurcated trial (one in which the liability and damages are separated into, essentially, two mini-trials). This is sometimes done in medical malpractice cases because jurors can become overwhelmed with sympathy at the plaintiff’s plight, and then be unable to fairly judge whether or not the clinician made a mistake in the first place.

Second, defense counsel should have considered admitting liability in the first surgery. Why do this? By admitting liability for the first surgery, the defense should have been able to block damaging evidence of the first surgery (suture size and absorbability) from being presented in a trial dealing with the second surgery.

Why is this fair? Because the ultimate issue in this case was whether or not the vagus nerve was injured in the second surgery—not whether better material could have been chosen for the first. By contesting liability for the first surgery, defense counsel permitted the jurors to hear prejudicial evidence of arguably “shoddy workmanship,” which was irrelevant in determining whether or not the vagus nerve was injured during the second surgery.

What lessons can be learned from this substantial verdict? All aspects of a surgical technique should be supported by the standard of care. Where there are choices in operative or procedural technique, ensure that the chosen technique has a foundation in defensible evidence-based medicine. Jurors will expect clinicians to identify and preserve sensitive structures. While inadvertent damage to nearby structures may be a risk inherent in certain procedures, jurors expect the utmost care in protecting those structures.

Candidly, jurors will likely find the clinician responsible for an intra-operative iatrogenic injury. The consent form disclosing “known risks” is necessary, but at time of trial, it will not be an impenetrable shield. Proceed carefully and thoughtfully, with support from evidence-based literature whenever possible. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Two Fundoplications Lead to Nerve Damage
A 13-year-old girl underwent surgery for intractable gastroesophageal reflux disease (GERD) in March 1999. The procedure involved the creation of a Nissen fundoplication, which was intended to tighten the esophagus’s lower sphincter. The surgery was performed by pediatrician Dr. S. with assistance from gastroenterologist Dr. N. at a major medical center.

The fundoplication subsequently unraveled, so in December 2000, the physicians recreated it. The patient subsequently developed gastroparesis.

The plaintiff claimed that improper performance of the fundoplications was to blame for the gastroparesis. She subsequently underwent seven surgeries, including the implantation of a pacemaker to control her gastrointestinal functions. The plaintiff also argued that her GERD had not resolved, which impaired her respiration and caused her to require continuous use of supplemental oxygen. The plaintiff also now receives nutrition by tube.

The matter proceeded to trial against both doctors and the medical center. The gastroenterologist, however, was dismissed when evidence showed that the pediatrician, Dr. S., was the primary performer of the fundoplications.

The plaintiff claimed that the failure of the initial fundoplication was due to the use of 3-0 absorbable sutures, when 2-0 nonabsorbable sutures should have been used. The plaintiff claimed that the nonabsorbable sutures were stronger. The plaintiff claimed that during the second fundoplication, a suture was improperly applied, damaging a portion of the vagus nerve. The plaintiff claimed that Dr. S. failed to identify and protect the nerve.

The defendants claimed that while 2-0 sutures are typically used in fundoplications, the 3-0 sutures were acceptable, and that identification and preservation of the vagus nerve was not required. The defendant also maintained that the vagus nerve was not damaged, but that the gastroparesis was due to an unrelated abnormality of the plaintiff’s metabolic process.

OUTCOME
According to a published account, a jury found Dr. S. negligent and awarded $60 million. An appeal was expected.

COMMENT
Medical malpractice awards can be astronomical, particularly when complications so substantially degrade a young patient’s quality of life. That said, damage to the vagus nerve is an accepted risk of a Nissen fundoplication. So how is it that a known risk of a surgery can result in the largest verdict awarded in New York in 2011?

Most lay jurors would recognize that the essential goal of a Nissen fundoplication for GERD is to improve symptoms by making structural changes to the lower esophagus and stomach. Jurors would believe it clearly foreseeable that the surgery would “fall apart” over time and regard the use of smaller dissolvable sutures as obvious error. In fact, the surgeon’s own expert acknowledged that fundoplications are typically secured with 2-0 nonabsorbable sutures and the defendant surgeon utilized 3-0 absorbable sutures. In the eyes of most jurors, this would have essentially served as an admission of liability.

Once the jurors were convinced of “shoddy workmanship” in the first surgery, they would have little trouble finding that the surgeon damaged the vagus nerve in the second. The surgeon defended on the grounds that the standard of care did not require the vagus nerve to be identified and preserved. This argument may have inflamed the jury, who will regard failure to look out for the nerve as wantonly reckless.

Further, the defendant’s claim that the patient’s gastroparesis was due to an “unrelated abnormality of her metabolic process” likely raised the ire of the jurors, who may have considered such an argument an unbelievable attempt to skirt responsibility for the outcome.

The jury may have been incensed that the surgeon chose the wrong size suture, used the wrong material, didn’t even bother to look for important nerves, and then sought to “blame the patient” for the subsequent surgeries, her need for continuous supplemental oxygen, and need for tube feeding.

As a matter of legal strategy, the surgeon’s attorneys should have considered a bifurcated trial (one in which the liability and damages are separated into, essentially, two mini-trials). This is sometimes done in medical malpractice cases because jurors can become overwhelmed with sympathy at the plaintiff’s plight, and then be unable to fairly judge whether or not the clinician made a mistake in the first place.

Second, defense counsel should have considered admitting liability in the first surgery. Why do this? By admitting liability for the first surgery, the defense should have been able to block damaging evidence of the first surgery (suture size and absorbability) from being presented in a trial dealing with the second surgery.

Why is this fair? Because the ultimate issue in this case was whether or not the vagus nerve was injured in the second surgery—not whether better material could have been chosen for the first. By contesting liability for the first surgery, defense counsel permitted the jurors to hear prejudicial evidence of arguably “shoddy workmanship,” which was irrelevant in determining whether or not the vagus nerve was injured during the second surgery.

What lessons can be learned from this substantial verdict? All aspects of a surgical technique should be supported by the standard of care. Where there are choices in operative or procedural technique, ensure that the chosen technique has a foundation in defensible evidence-based medicine. Jurors will expect clinicians to identify and preserve sensitive structures. While inadvertent damage to nearby structures may be a risk inherent in certain procedures, jurors expect the utmost care in protecting those structures.

Candidly, jurors will likely find the clinician responsible for an intra-operative iatrogenic injury. The consent form disclosing “known risks” is necessary, but at time of trial, it will not be an impenetrable shield. Proceed carefully and thoughtfully, with support from evidence-based literature whenever possible. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Presenting Complaint Overshadows More Serious Problem
A Florida woman who presented to a walk-in clinic for a respiratory condition had also sustained a puncture wound on her finger from an air-powered paint gun. The defendant physician prescribed an antibiotic but did not order an x-ray.

The patient returned to the clinic two days later with increased pain, swelling, and blackening of the finger. The defendant prescribed two pain medications but did not order an x-ray; nor did he mention follow-up treatment.

Later that day, the woman presented to a hospital emergency department (ED) and subsequently underwent amputation of the distal end of her index finger.

The plaintiff alleged negligence on the physician’s failure to send her to the ED or to provide proper care for her finger injury. The defendants claimed that the plaintiff presented to the clinic for evaluation of a respiratory condition and was prescribed an antibiotic. When the plaintiff had a problem with the first antibiotic, the defendant substituted another. The defendant denied that the plaintiff ever complained of a finger injury.

OUTCOME
According to a published account, a verdict of $241,275 was returned. This included $2,000 to be awarded to the plaintiff’s husband for loss of services.

COMMENT
High-pressure injection injuries are often underestimated, legally risky, and potentially devastating to the patient.

As expected, the hands are most likely to be involved, and grease and paint are the substances most commonly injected. The most common injury sites are the index finger or palm of the nondominant hand, which is injected when the user attempts to clean the gun’s nozzle or to steady the gun with a free hand.

These cases can be catastrophic. Outwardly, the injury appears to be an innocuous puncture wound, but the internal injury is severe. Clinicians unfamiliar with high-pressure injection injuries often treat them as a typical puncture wound, as was done in this case. High-pressure injection injuries require immediate surgical consultation and operative management. Even when competent, prompt surgical management takes place, amputation rates are high.

Jurors find the loss of a limb or a digit compelling and recognize the important life-long consequences of such an injury. Jurors expect clinicians to recognize that paint or grease that fills a finger under high pressure represents a threat to the limb, and they will expect the clinician to act swiftly in an effort to save the digit.

Moreover, such cases are easy for the plaintiff’s attorney to try. Unlike electrolyte disturbances or complicated metabolic derangements, high-pressure injection injuries are easy to understand and will keep the average juror’s attention. The plaintiff’s attorney will offer dramatic testimonial evidence of necrosis and inflammation as the paint is shown to move along the tendon sheath. Damaging intraoperative photographic evidence may be produced, and photographs of the resulting wound are almost certain.

High-pressure injection injuries are limb/digit-threatening. Move quickly to offer the patient the best possible result and minimize your malpractice risk. —DML

Mismanaged Infection in Man With Previous Splenectomy
In Ohio, a 27-year-old man presented to the ED with a temperature of 103°F and other signs and symptoms of infection. He had a history of idiopathic thrombocytopenic purpura (ITP), for which he had previously undergone removal of his spleen. At the ED, he was seen by the defendant emergency physician, Dr. A., who made a diagnosis of flu and obtained a culture.

Dr. A. also called Dr. B., the defendant oncologist/hematologist, for a consult. According to Dr. A., he asked Dr. B. whether antibiotics should be prescribed before the patient was released, and Dr. B. told him antibiotics were not necessary. The man was then discharged.

By the next morning, his symptoms had worsened. He presented to a second ED, where he died as a result of an overwhelming infection.

Plaintiff for the decedent claimed that antibiotics should have been prescribed due to his pre-existing ITP and history of splenectomy. Dr. A. claimed that he had appropriately consulted with Dr. B. and had followed the instructions he was given. Dr. B. acknowledged that he had been called and notified that the decedent was in the ED, but he maintained that he had not been asked for advice about whether to prescribe antibiotics.

OUTCOME
According to a published account, a $750,000 verdict was returned. Dr. B. was found 70% at fault, and Dr. A. was found 30% at fault.

COMMENT
This case involves failure to recognize and treat overwhelming postsplenectomy infection (OPSI). Given the patient’s young age and the lost possibility for a full recovery, the jury’s verdict is restrained and probably reflects a relatively conservative jury pool.

Asplenic patients are usually aware that they do not have a spleen, but they may not recognize their associated risk for serious infection. The fact of the matter is that asplenic patients are immunocompromised. When an asplenic patient presents with a febrile illness that is consistent with OPSI, this is a true medical emergency. These patients must undergo a vigorous workup and expeditious administration of antibiotics to offer the best chance for survival. Even with appropriate antibiotic treatment and supportive therapies, mortality associated with OPSI ranges between 50% and 80%.

In this case, the emergency physician obtained a hematology/oncology consultation. There is a dispute between the defendant physicians as to whether antibiotics were recommended or even discussed. It is unclear from the record whether or not the emergency physician’s clinical note includes such a discussion. The jury apportioned the majority of the liability to the hematologist but still found the emergency physician negligent.

Conflict between clinicians or departments can get testy in the clinical record; don’t let that happen. An otherwise defensible record of care can become a nightmare for defense counsel when an interpersonal or interdepartmental conflict is played out in the clinical record. As with personal conflict, defensive addendums to a patient’s record can be damaging. Jurors generally reward “finger pointing” between medical professionals with a verdict for the plaintiff, even when the care itself may be defensible. Regularly held peer review offers clinicians an opportunity to discuss difficult cases without fearing that those discussions will be used as evidence. A formal peer review committee is the exclusive and proper outlet to discuss challenging clinical cases.

Appropriate care for our patients is the ultimate necessity. It can be tricky for a clinician seeking a consultation to challenge the consultant’s recommendation. When confronted with a recommendation that leaves you (the referring clinician) with “heartburn,” it may be helpful for you to restate your misgivings affirmatively—for example, “My concern with that approach is ___,” then state the risks in the gravest terms the situation will allow. Make your preferred course of action apparent: “Honestly, I’d like to admit the patient because of ____.”

If you remain uneasy, seek another colleague’s opinion. Record the substance of the consultation, concerns, and responses fully, accurately but dispassionately, in the patient’s record.

Make sure to give the consultant all the clinical information available; and if you are the consultant, be sure you have received all available information. Treat the consultation formally and with your full attention. The jury will expect the consultant to be fully involved in caring for the patient.

Here, if the emergency physician did not agree with the hematologist, it would have been reasonable for him to obtain a second opinion or to admit the patient and begin empiric antibiotic treatment. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Presenting Complaint Overshadows More Serious Problem
A Florida woman who presented to a walk-in clinic for a respiratory condition had also sustained a puncture wound on her finger from an air-powered paint gun. The defendant physician prescribed an antibiotic but did not order an x-ray.

The patient returned to the clinic two days later with increased pain, swelling, and blackening of the finger. The defendant prescribed two pain medications but did not order an x-ray; nor did he mention follow-up treatment.

Later that day, the woman presented to a hospital emergency department (ED) and subsequently underwent amputation of the distal end of her index finger.

The plaintiff alleged negligence on the physician’s failure to send her to the ED or to provide proper care for her finger injury. The defendants claimed that the plaintiff presented to the clinic for evaluation of a respiratory condition and was prescribed an antibiotic. When the plaintiff had a problem with the first antibiotic, the defendant substituted another. The defendant denied that the plaintiff ever complained of a finger injury.

OUTCOME
According to a published account, a verdict of $241,275 was returned. This included $2,000 to be awarded to the plaintiff’s husband for loss of services.

COMMENT
High-pressure injection injuries are often underestimated, legally risky, and potentially devastating to the patient.

As expected, the hands are most likely to be involved, and grease and paint are the substances most commonly injected. The most common injury sites are the index finger or palm of the nondominant hand, which is injected when the user attempts to clean the gun’s nozzle or to steady the gun with a free hand.

These cases can be catastrophic. Outwardly, the injury appears to be an innocuous puncture wound, but the internal injury is severe. Clinicians unfamiliar with high-pressure injection injuries often treat them as a typical puncture wound, as was done in this case. High-pressure injection injuries require immediate surgical consultation and operative management. Even when competent, prompt surgical management takes place, amputation rates are high.

Jurors find the loss of a limb or a digit compelling and recognize the important life-long consequences of such an injury. Jurors expect clinicians to recognize that paint or grease that fills a finger under high pressure represents a threat to the limb, and they will expect the clinician to act swiftly in an effort to save the digit.

Moreover, such cases are easy for the plaintiff’s attorney to try. Unlike electrolyte disturbances or complicated metabolic derangements, high-pressure injection injuries are easy to understand and will keep the average juror’s attention. The plaintiff’s attorney will offer dramatic testimonial evidence of necrosis and inflammation as the paint is shown to move along the tendon sheath. Damaging intraoperative photographic evidence may be produced, and photographs of the resulting wound are almost certain.

High-pressure injection injuries are limb/digit-threatening. Move quickly to offer the patient the best possible result and minimize your malpractice risk. —DML

Mismanaged Infection in Man With Previous Splenectomy
In Ohio, a 27-year-old man presented to the ED with a temperature of 103°F and other signs and symptoms of infection. He had a history of idiopathic thrombocytopenic purpura (ITP), for which he had previously undergone removal of his spleen. At the ED, he was seen by the defendant emergency physician, Dr. A., who made a diagnosis of flu and obtained a culture.

Dr. A. also called Dr. B., the defendant oncologist/hematologist, for a consult. According to Dr. A., he asked Dr. B. whether antibiotics should be prescribed before the patient was released, and Dr. B. told him antibiotics were not necessary. The man was then discharged.

By the next morning, his symptoms had worsened. He presented to a second ED, where he died as a result of an overwhelming infection.

Plaintiff for the decedent claimed that antibiotics should have been prescribed due to his pre-existing ITP and history of splenectomy. Dr. A. claimed that he had appropriately consulted with Dr. B. and had followed the instructions he was given. Dr. B. acknowledged that he had been called and notified that the decedent was in the ED, but he maintained that he had not been asked for advice about whether to prescribe antibiotics.

OUTCOME
According to a published account, a $750,000 verdict was returned. Dr. B. was found 70% at fault, and Dr. A. was found 30% at fault.

COMMENT
This case involves failure to recognize and treat overwhelming postsplenectomy infection (OPSI). Given the patient’s young age and the lost possibility for a full recovery, the jury’s verdict is restrained and probably reflects a relatively conservative jury pool.

Asplenic patients are usually aware that they do not have a spleen, but they may not recognize their associated risk for serious infection. The fact of the matter is that asplenic patients are immunocompromised. When an asplenic patient presents with a febrile illness that is consistent with OPSI, this is a true medical emergency. These patients must undergo a vigorous workup and expeditious administration of antibiotics to offer the best chance for survival. Even with appropriate antibiotic treatment and supportive therapies, mortality associated with OPSI ranges between 50% and 80%.

In this case, the emergency physician obtained a hematology/oncology consultation. There is a dispute between the defendant physicians as to whether antibiotics were recommended or even discussed. It is unclear from the record whether or not the emergency physician’s clinical note includes such a discussion. The jury apportioned the majority of the liability to the hematologist but still found the emergency physician negligent.

Conflict between clinicians or departments can get testy in the clinical record; don’t let that happen. An otherwise defensible record of care can become a nightmare for defense counsel when an interpersonal or interdepartmental conflict is played out in the clinical record. As with personal conflict, defensive addendums to a patient’s record can be damaging. Jurors generally reward “finger pointing” between medical professionals with a verdict for the plaintiff, even when the care itself may be defensible. Regularly held peer review offers clinicians an opportunity to discuss difficult cases without fearing that those discussions will be used as evidence. A formal peer review committee is the exclusive and proper outlet to discuss challenging clinical cases.

Appropriate care for our patients is the ultimate necessity. It can be tricky for a clinician seeking a consultation to challenge the consultant’s recommendation. When confronted with a recommendation that leaves you (the referring clinician) with “heartburn,” it may be helpful for you to restate your misgivings affirmatively—for example, “My concern with that approach is ___,” then state the risks in the gravest terms the situation will allow. Make your preferred course of action apparent: “Honestly, I’d like to admit the patient because of ____.”

If you remain uneasy, seek another colleague’s opinion. Record the substance of the consultation, concerns, and responses fully, accurately but dispassionately, in the patient’s record.

Make sure to give the consultant all the clinical information available; and if you are the consultant, be sure you have received all available information. Treat the consultation formally and with your full attention. The jury will expect the consultant to be fully involved in caring for the patient.

Here, if the emergency physician did not agree with the hematologist, it would have been reasonable for him to obtain a second opinion or to admit the patient and begin empiric antibiotic treatment. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Presenting Complaint Overshadows More Serious Problem
A Florida woman who presented to a walk-in clinic for a respiratory condition had also sustained a puncture wound on her finger from an air-powered paint gun. The defendant physician prescribed an antibiotic but did not order an x-ray.

The patient returned to the clinic two days later with increased pain, swelling, and blackening of the finger. The defendant prescribed two pain medications but did not order an x-ray; nor did he mention follow-up treatment.

Later that day, the woman presented to a hospital emergency department (ED) and subsequently underwent amputation of the distal end of her index finger.

The plaintiff alleged negligence on the physician’s failure to send her to the ED or to provide proper care for her finger injury. The defendants claimed that the plaintiff presented to the clinic for evaluation of a respiratory condition and was prescribed an antibiotic. When the plaintiff had a problem with the first antibiotic, the defendant substituted another. The defendant denied that the plaintiff ever complained of a finger injury.

OUTCOME
According to a published account, a verdict of $241,275 was returned. This included $2,000 to be awarded to the plaintiff’s husband for loss of services.

COMMENT
High-pressure injection injuries are often underestimated, legally risky, and potentially devastating to the patient.

As expected, the hands are most likely to be involved, and grease and paint are the substances most commonly injected. The most common injury sites are the index finger or palm of the nondominant hand, which is injected when the user attempts to clean the gun’s nozzle or to steady the gun with a free hand.

These cases can be catastrophic. Outwardly, the injury appears to be an innocuous puncture wound, but the internal injury is severe. Clinicians unfamiliar with high-pressure injection injuries often treat them as a typical puncture wound, as was done in this case. High-pressure injection injuries require immediate surgical consultation and operative management. Even when competent, prompt surgical management takes place, amputation rates are high.

Jurors find the loss of a limb or a digit compelling and recognize the important life-long consequences of such an injury. Jurors expect clinicians to recognize that paint or grease that fills a finger under high pressure represents a threat to the limb, and they will expect the clinician to act swiftly in an effort to save the digit.

Moreover, such cases are easy for the plaintiff’s attorney to try. Unlike electrolyte disturbances or complicated metabolic derangements, high-pressure injection injuries are easy to understand and will keep the average juror’s attention. The plaintiff’s attorney will offer dramatic testimonial evidence of necrosis and inflammation as the paint is shown to move along the tendon sheath. Damaging intraoperative photographic evidence may be produced, and photographs of the resulting wound are almost certain.

High-pressure injection injuries are limb/digit-threatening. Move quickly to offer the patient the best possible result and minimize your malpractice risk. —DML

Mismanaged Infection in Man With Previous Splenectomy
In Ohio, a 27-year-old man presented to the ED with a temperature of 103°F and other signs and symptoms of infection. He had a history of idiopathic thrombocytopenic purpura (ITP), for which he had previously undergone removal of his spleen. At the ED, he was seen by the defendant emergency physician, Dr. A., who made a diagnosis of flu and obtained a culture.

Dr. A. also called Dr. B., the defendant oncologist/hematologist, for a consult. According to Dr. A., he asked Dr. B. whether antibiotics should be prescribed before the patient was released, and Dr. B. told him antibiotics were not necessary. The man was then discharged.

By the next morning, his symptoms had worsened. He presented to a second ED, where he died as a result of an overwhelming infection.

Plaintiff for the decedent claimed that antibiotics should have been prescribed due to his pre-existing ITP and history of splenectomy. Dr. A. claimed that he had appropriately consulted with Dr. B. and had followed the instructions he was given. Dr. B. acknowledged that he had been called and notified that the decedent was in the ED, but he maintained that he had not been asked for advice about whether to prescribe antibiotics.

OUTCOME
According to a published account, a $750,000 verdict was returned. Dr. B. was found 70% at fault, and Dr. A. was found 30% at fault.

COMMENT
This case involves failure to recognize and treat overwhelming postsplenectomy infection (OPSI). Given the patient’s young age and the lost possibility for a full recovery, the jury’s verdict is restrained and probably reflects a relatively conservative jury pool.

Asplenic patients are usually aware that they do not have a spleen, but they may not recognize their associated risk for serious infection. The fact of the matter is that asplenic patients are immunocompromised. When an asplenic patient presents with a febrile illness that is consistent with OPSI, this is a true medical emergency. These patients must undergo a vigorous workup and expeditious administration of antibiotics to offer the best chance for survival. Even with appropriate antibiotic treatment and supportive therapies, mortality associated with OPSI ranges between 50% and 80%.

In this case, the emergency physician obtained a hematology/oncology consultation. There is a dispute between the defendant physicians as to whether antibiotics were recommended or even discussed. It is unclear from the record whether or not the emergency physician’s clinical note includes such a discussion. The jury apportioned the majority of the liability to the hematologist but still found the emergency physician negligent.

Conflict between clinicians or departments can get testy in the clinical record; don’t let that happen. An otherwise defensible record of care can become a nightmare for defense counsel when an interpersonal or interdepartmental conflict is played out in the clinical record. As with personal conflict, defensive addendums to a patient’s record can be damaging. Jurors generally reward “finger pointing” between medical professionals with a verdict for the plaintiff, even when the care itself may be defensible. Regularly held peer review offers clinicians an opportunity to discuss difficult cases without fearing that those discussions will be used as evidence. A formal peer review committee is the exclusive and proper outlet to discuss challenging clinical cases.

Appropriate care for our patients is the ultimate necessity. It can be tricky for a clinician seeking a consultation to challenge the consultant’s recommendation. When confronted with a recommendation that leaves you (the referring clinician) with “heartburn,” it may be helpful for you to restate your misgivings affirmatively—for example, “My concern with that approach is ___,” then state the risks in the gravest terms the situation will allow. Make your preferred course of action apparent: “Honestly, I’d like to admit the patient because of ____.”

If you remain uneasy, seek another colleague’s opinion. Record the substance of the consultation, concerns, and responses fully, accurately but dispassionately, in the patient’s record.

Make sure to give the consultant all the clinical information available; and if you are the consultant, be sure you have received all available information. Treat the consultation formally and with your full attention. The jury will expect the consultant to be fully involved in caring for the patient.

Here, if the emergency physician did not agree with the hematologist, it would have been reasonable for him to obtain a second opinion or to admit the patient and begin empiric antibiotic treatment. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Obesity Distracts from Pulmonary Embolism
A 32-year-old Maryland woman presented to her primary care physician in August 2005 with complaints of recent-­onset shortness of breath. Results from a cardiac workup were normal. The patient returned to the same doctor two more times with persistent symptoms. The doctor ordered CT in order to rule out the possibility of pulmonary embolism, but the test was not done. Instead, an echocardiogram was performed, resulting in a technically limited study with results indicating that the woman’s heart function was normal and showing no evidence of pulmonary hypertension.

The woman was then referred to the defendant pulmonologist, Dr. M. She first presented to the defendant in November 2005 and continued to receive treatment from him until the following May. The woman was originally prescribed prednisone for what the defendant diagnosed as sarcoidosis. When this was later discovered to be an incorrect diagnosis, Dr. M. prescribed furosemide to relieve excess fluid buildup. The patient was 5’2” tall and weighed approximately 350 lb. The defendant made a diagnosis of obesity-related hypoventilation/shortness of breath.

During this time, the patient was seen by a bariatric surgeon. Bariatric surgery was scheduled for May 2005. While in the bariatric surgeon’s office before the surgery, the woman began to experience labored breathing. The bariatric surgeon contacted Dr. M. by phone and recommended that he see the patient to investigate her breathing difficulties, which the surgeon had observed. The woman reportedly told the defendant that she was having trouble breathing, but that it was no different from any other day. Additionally, the patient had not yet taken her furosemide or used her oxygen that day.

The woman scheduled an appointment with the defendant for three days later, but she experienced a fatal pulmonary embolism one day before the scheduled visit.

Plaintiffs for the decedent alleged negligence in the defendant pulmonologist’s failure to make a diagnosis of pulmonary embolism and in failing to order CT angiography, which would have revealed evidence of the pulmonary emboli.

The defendant claimed that the diagnosis made was reasonable.

Outcome
According to a published report, an $800,000 verdict was returned.

Comment
The CT scan that the primary care provider ordered to rule out pulmonary embolism was never done. An echocardiogram was not only not the test ordered, but also the wrong test, and technically limited. Neither the physician who correctly ordered the test to rule out a life-threatening condition nor the defendant pulmonologist, who should have had pulmonary embolus on the list of diagnostic alternatives, ever tried again to get this important information. With the passage of time, the true diagnosis got lost in the shuffle, and the patient’s obesity allowed the diagnosis of a weight-based problem to distract.

When a patient’s symptoms are so concerning that they rate a personal call from the bariatric surgeon to the pulmonologist in the patient’s presence, the explanation of failure to have taken medications should not have prevailed. Three days was too long to postpone an evaluation, as the end result proved. —JP

Crohn’s Flair Misdiagnosed in Pregnant Woman
A woman from California was given a diagnosis of Crohn’s disease in 2003. In 2006, she became pregnant for the first time and began to receive prenatal treatment from Dr. D., an obstetrician. The pregnancy was considered high-risk due to the Crohn’s disease. The patient was referred to a gastrointestinal specialist for a baseline examination in November 2006, but in January 2007, Dr. D. took over her GI-related care as well.

Dr. D. referred the woman to Dr. W., a specialist in high-risk pregnancy. When Dr. W. first saw her in February 2007, he made the determination that her Crohn’s disease was inactive and that the fetus was fine. He advised her that if any symptoms flared, she should consult with her GI specialist. Dr. W. saw the patient for two additional visits and noted no problems with the exception of a bowel impaction.

In May and June, the woman went to the hospital on four occasions with complaints of severe abdominal pain. Each time, Dr. D. was called, and the patient was released in improved condition.

The patient claimed that she suffered from severe pain and nausea that caused her to be virtually bedbound beginning in May. Early in July, she called Dr. D. to report that she was still in pain, and she was instructed to go to the hospital for induction of labor and delivery, as her due date was only three days away. After 23 hours of labor, the woman delivered a healthy baby girl. The patient had anemia when she was discharged.

After a few days, she called Dr. D. and asked to come to the office for a complete blood count to check on her anemia. She also complained of minimal headaches and dizziness. She did not keep the appointment for her blood test. A little more than a week later, the plaintiff was taken to the hospital with a lump on her right abdomen. When CT revealed a mass, she was scheduled for surgery, which involved the removal of a 12-inch piece of bowel to treat a perforation of the bowel that was attributed to a Crohn’s flair.

The plaintiff claimed that the defendants had ignored her reported symptoms of a Crohn’s flair, which led to the perforation. The defendants claimed that the plaintiff had not had a Crohn’s flair during her pregnancy and that all of her complaints were attributable to the pregnancy.

Outcome
According to a published account, a defense verdict was returned.

Comment
Pain in a pregnant woman needs an explanation. The finding early in the patient’s pregnancy that there was no Crohn’s flare did not mean that a flare would not occur later. The defendants prevailed, but it appears that the obstetricians failed to determine a cause for the pain. If the obstetricians had kept the gastroenterologist in the loop, they might have been able to prevent the loss of bowel. —JP

Oral Neoplasm Goes Undiagnosed
An Ohio woman was under the care of Dr. V. from 1998 to 2006. She was being treated for fibrocystic breast disease, cysts, phyllodes tumor, and carcinoma. In 2006, the patient developed a malignant spindle-cell neoplasm in her mouth. The lesion metastasized to her lungs and brain, and she died in February 2007.

The plaintiff claimed that the defendant was negligent in her treatment of the decedent.

Outcome
According to a published account, a defense verdict was returned.

Comment
Failing to look into the oral cavity and then investigate any suspicious lesions—especially in a patient with a history of cancer—falls below the standard of care. Unfortunately, many clinicians have not had adequate education in oral health care and do not include an oral exam as a routine part of the physical examination. —RDD     

Delayed Referral Renders Tendon Injury Irreparable
At age 39, a Nevada man sustained a complete rupture of his left distal biceps tendon after experiencing a hyperextension injury that occurred when a ping-pong table he was unloading suddenly slipped off the truck. The plaintiff was a personal trainer and a champion bodybuilder.

The injury was initially diagnosed at a non-party medical center; there, the patient was referred to a non-party orthopedist who recommended surgical repair to correct the deformity while preserving the man’s strength. The orthopedist believed that the time in which surgical correction could be accomplished was limited.

The patient decided instead to go to a Veterans Administration facility for care; he was seen by the defendant internist in the VA triage department one week after the injury. According to the patient, the defendant told him that there was no urgency to schedule the surgery and gave him a nonurgent referral to a VA orthopedist. The man also reported that the defendant ordered a nonurgent magnetic resonance angiogram (MRA) of the arm, filled out the proper VA forms for an orthopedic referral, prescribed ibuprofen and hydrocodone with acetaminophen, and instructed the patient to use a sling.

It was not until about six weeks after his injury that the patient saw a VA orthopedist, who then referred him back to the non-party orthopedist for surgery. The surgery was performed about nine weeks after the injury. By that time, the proximal tendon was found to be scarred and could not be reattached.

The plaintiff alleged that the cosmetic deformity and loss of strength in the arm could not be corrected. He claimed that an MRI, not an MRA, should have been ordered by the defendant, and that the defendant failed to obtain for him a timely referral to an orthopedic surgeon.

The defendant claimed that he had taken all of the proper steps to comply with the VA’s referral procedure. The defendant charged the plaintiff with contributory negligence for not seeing an orthopedist sooner and for his history of using anabolic steroids.

Outcome
According to a published report, a defense verdict was returned.

Comment
As in most malpractice cases, the “blame” is rarely black and white. While this is true in this case, it brings an important issue to bear. Timely referrals are extremely important, especially in orthopedic injuries, such as the one in this case. Referral policies should be reexamined to avoid lengthy referral times—particularly when a large organization is involved. —RDD

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Obesity Distracts from Pulmonary Embolism
A 32-year-old Maryland woman presented to her primary care physician in August 2005 with complaints of recent-­onset shortness of breath. Results from a cardiac workup were normal. The patient returned to the same doctor two more times with persistent symptoms. The doctor ordered CT in order to rule out the possibility of pulmonary embolism, but the test was not done. Instead, an echocardiogram was performed, resulting in a technically limited study with results indicating that the woman’s heart function was normal and showing no evidence of pulmonary hypertension.

The woman was then referred to the defendant pulmonologist, Dr. M. She first presented to the defendant in November 2005 and continued to receive treatment from him until the following May. The woman was originally prescribed prednisone for what the defendant diagnosed as sarcoidosis. When this was later discovered to be an incorrect diagnosis, Dr. M. prescribed furosemide to relieve excess fluid buildup. The patient was 5’2” tall and weighed approximately 350 lb. The defendant made a diagnosis of obesity-related hypoventilation/shortness of breath.

During this time, the patient was seen by a bariatric surgeon. Bariatric surgery was scheduled for May 2005. While in the bariatric surgeon’s office before the surgery, the woman began to experience labored breathing. The bariatric surgeon contacted Dr. M. by phone and recommended that he see the patient to investigate her breathing difficulties, which the surgeon had observed. The woman reportedly told the defendant that she was having trouble breathing, but that it was no different from any other day. Additionally, the patient had not yet taken her furosemide or used her oxygen that day.

The woman scheduled an appointment with the defendant for three days later, but she experienced a fatal pulmonary embolism one day before the scheduled visit.

Plaintiffs for the decedent alleged negligence in the defendant pulmonologist’s failure to make a diagnosis of pulmonary embolism and in failing to order CT angiography, which would have revealed evidence of the pulmonary emboli.

The defendant claimed that the diagnosis made was reasonable.

Outcome
According to a published report, an $800,000 verdict was returned.

Comment
The CT scan that the primary care provider ordered to rule out pulmonary embolism was never done. An echocardiogram was not only not the test ordered, but also the wrong test, and technically limited. Neither the physician who correctly ordered the test to rule out a life-threatening condition nor the defendant pulmonologist, who should have had pulmonary embolus on the list of diagnostic alternatives, ever tried again to get this important information. With the passage of time, the true diagnosis got lost in the shuffle, and the patient’s obesity allowed the diagnosis of a weight-based problem to distract.

When a patient’s symptoms are so concerning that they rate a personal call from the bariatric surgeon to the pulmonologist in the patient’s presence, the explanation of failure to have taken medications should not have prevailed. Three days was too long to postpone an evaluation, as the end result proved. —JP

Crohn’s Flair Misdiagnosed in Pregnant Woman
A woman from California was given a diagnosis of Crohn’s disease in 2003. In 2006, she became pregnant for the first time and began to receive prenatal treatment from Dr. D., an obstetrician. The pregnancy was considered high-risk due to the Crohn’s disease. The patient was referred to a gastrointestinal specialist for a baseline examination in November 2006, but in January 2007, Dr. D. took over her GI-related care as well.

Dr. D. referred the woman to Dr. W., a specialist in high-risk pregnancy. When Dr. W. first saw her in February 2007, he made the determination that her Crohn’s disease was inactive and that the fetus was fine. He advised her that if any symptoms flared, she should consult with her GI specialist. Dr. W. saw the patient for two additional visits and noted no problems with the exception of a bowel impaction.

In May and June, the woman went to the hospital on four occasions with complaints of severe abdominal pain. Each time, Dr. D. was called, and the patient was released in improved condition.

The patient claimed that she suffered from severe pain and nausea that caused her to be virtually bedbound beginning in May. Early in July, she called Dr. D. to report that she was still in pain, and she was instructed to go to the hospital for induction of labor and delivery, as her due date was only three days away. After 23 hours of labor, the woman delivered a healthy baby girl. The patient had anemia when she was discharged.

After a few days, she called Dr. D. and asked to come to the office for a complete blood count to check on her anemia. She also complained of minimal headaches and dizziness. She did not keep the appointment for her blood test. A little more than a week later, the plaintiff was taken to the hospital with a lump on her right abdomen. When CT revealed a mass, she was scheduled for surgery, which involved the removal of a 12-inch piece of bowel to treat a perforation of the bowel that was attributed to a Crohn’s flair.

The plaintiff claimed that the defendants had ignored her reported symptoms of a Crohn’s flair, which led to the perforation. The defendants claimed that the plaintiff had not had a Crohn’s flair during her pregnancy and that all of her complaints were attributable to the pregnancy.

Outcome
According to a published account, a defense verdict was returned.

Comment
Pain in a pregnant woman needs an explanation. The finding early in the patient’s pregnancy that there was no Crohn’s flare did not mean that a flare would not occur later. The defendants prevailed, but it appears that the obstetricians failed to determine a cause for the pain. If the obstetricians had kept the gastroenterologist in the loop, they might have been able to prevent the loss of bowel. —JP

Oral Neoplasm Goes Undiagnosed
An Ohio woman was under the care of Dr. V. from 1998 to 2006. She was being treated for fibrocystic breast disease, cysts, phyllodes tumor, and carcinoma. In 2006, the patient developed a malignant spindle-cell neoplasm in her mouth. The lesion metastasized to her lungs and brain, and she died in February 2007.

The plaintiff claimed that the defendant was negligent in her treatment of the decedent.

Outcome
According to a published account, a defense verdict was returned.

Comment
Failing to look into the oral cavity and then investigate any suspicious lesions—especially in a patient with a history of cancer—falls below the standard of care. Unfortunately, many clinicians have not had adequate education in oral health care and do not include an oral exam as a routine part of the physical examination. —RDD     

Delayed Referral Renders Tendon Injury Irreparable
At age 39, a Nevada man sustained a complete rupture of his left distal biceps tendon after experiencing a hyperextension injury that occurred when a ping-pong table he was unloading suddenly slipped off the truck. The plaintiff was a personal trainer and a champion bodybuilder.

The injury was initially diagnosed at a non-party medical center; there, the patient was referred to a non-party orthopedist who recommended surgical repair to correct the deformity while preserving the man’s strength. The orthopedist believed that the time in which surgical correction could be accomplished was limited.

The patient decided instead to go to a Veterans Administration facility for care; he was seen by the defendant internist in the VA triage department one week after the injury. According to the patient, the defendant told him that there was no urgency to schedule the surgery and gave him a nonurgent referral to a VA orthopedist. The man also reported that the defendant ordered a nonurgent magnetic resonance angiogram (MRA) of the arm, filled out the proper VA forms for an orthopedic referral, prescribed ibuprofen and hydrocodone with acetaminophen, and instructed the patient to use a sling.

It was not until about six weeks after his injury that the patient saw a VA orthopedist, who then referred him back to the non-party orthopedist for surgery. The surgery was performed about nine weeks after the injury. By that time, the proximal tendon was found to be scarred and could not be reattached.

The plaintiff alleged that the cosmetic deformity and loss of strength in the arm could not be corrected. He claimed that an MRI, not an MRA, should have been ordered by the defendant, and that the defendant failed to obtain for him a timely referral to an orthopedic surgeon.

The defendant claimed that he had taken all of the proper steps to comply with the VA’s referral procedure. The defendant charged the plaintiff with contributory negligence for not seeing an orthopedist sooner and for his history of using anabolic steroids.

Outcome
According to a published report, a defense verdict was returned.

Comment
As in most malpractice cases, the “blame” is rarely black and white. While this is true in this case, it brings an important issue to bear. Timely referrals are extremely important, especially in orthopedic injuries, such as the one in this case. Referral policies should be reexamined to avoid lengthy referral times—particularly when a large organization is involved. —RDD

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Obesity Distracts from Pulmonary Embolism
A 32-year-old Maryland woman presented to her primary care physician in August 2005 with complaints of recent-­onset shortness of breath. Results from a cardiac workup were normal. The patient returned to the same doctor two more times with persistent symptoms. The doctor ordered CT in order to rule out the possibility of pulmonary embolism, but the test was not done. Instead, an echocardiogram was performed, resulting in a technically limited study with results indicating that the woman’s heart function was normal and showing no evidence of pulmonary hypertension.

The woman was then referred to the defendant pulmonologist, Dr. M. She first presented to the defendant in November 2005 and continued to receive treatment from him until the following May. The woman was originally prescribed prednisone for what the defendant diagnosed as sarcoidosis. When this was later discovered to be an incorrect diagnosis, Dr. M. prescribed furosemide to relieve excess fluid buildup. The patient was 5’2” tall and weighed approximately 350 lb. The defendant made a diagnosis of obesity-related hypoventilation/shortness of breath.

During this time, the patient was seen by a bariatric surgeon. Bariatric surgery was scheduled for May 2005. While in the bariatric surgeon’s office before the surgery, the woman began to experience labored breathing. The bariatric surgeon contacted Dr. M. by phone and recommended that he see the patient to investigate her breathing difficulties, which the surgeon had observed. The woman reportedly told the defendant that she was having trouble breathing, but that it was no different from any other day. Additionally, the patient had not yet taken her furosemide or used her oxygen that day.

The woman scheduled an appointment with the defendant for three days later, but she experienced a fatal pulmonary embolism one day before the scheduled visit.

Plaintiffs for the decedent alleged negligence in the defendant pulmonologist’s failure to make a diagnosis of pulmonary embolism and in failing to order CT angiography, which would have revealed evidence of the pulmonary emboli.

The defendant claimed that the diagnosis made was reasonable.

Outcome
According to a published report, an $800,000 verdict was returned.

Comment
The CT scan that the primary care provider ordered to rule out pulmonary embolism was never done. An echocardiogram was not only not the test ordered, but also the wrong test, and technically limited. Neither the physician who correctly ordered the test to rule out a life-threatening condition nor the defendant pulmonologist, who should have had pulmonary embolus on the list of diagnostic alternatives, ever tried again to get this important information. With the passage of time, the true diagnosis got lost in the shuffle, and the patient’s obesity allowed the diagnosis of a weight-based problem to distract.

When a patient’s symptoms are so concerning that they rate a personal call from the bariatric surgeon to the pulmonologist in the patient’s presence, the explanation of failure to have taken medications should not have prevailed. Three days was too long to postpone an evaluation, as the end result proved. —JP

Crohn’s Flair Misdiagnosed in Pregnant Woman
A woman from California was given a diagnosis of Crohn’s disease in 2003. In 2006, she became pregnant for the first time and began to receive prenatal treatment from Dr. D., an obstetrician. The pregnancy was considered high-risk due to the Crohn’s disease. The patient was referred to a gastrointestinal specialist for a baseline examination in November 2006, but in January 2007, Dr. D. took over her GI-related care as well.

Dr. D. referred the woman to Dr. W., a specialist in high-risk pregnancy. When Dr. W. first saw her in February 2007, he made the determination that her Crohn’s disease was inactive and that the fetus was fine. He advised her that if any symptoms flared, she should consult with her GI specialist. Dr. W. saw the patient for two additional visits and noted no problems with the exception of a bowel impaction.

In May and June, the woman went to the hospital on four occasions with complaints of severe abdominal pain. Each time, Dr. D. was called, and the patient was released in improved condition.

The patient claimed that she suffered from severe pain and nausea that caused her to be virtually bedbound beginning in May. Early in July, she called Dr. D. to report that she was still in pain, and she was instructed to go to the hospital for induction of labor and delivery, as her due date was only three days away. After 23 hours of labor, the woman delivered a healthy baby girl. The patient had anemia when she was discharged.

After a few days, she called Dr. D. and asked to come to the office for a complete blood count to check on her anemia. She also complained of minimal headaches and dizziness. She did not keep the appointment for her blood test. A little more than a week later, the plaintiff was taken to the hospital with a lump on her right abdomen. When CT revealed a mass, she was scheduled for surgery, which involved the removal of a 12-inch piece of bowel to treat a perforation of the bowel that was attributed to a Crohn’s flair.

The plaintiff claimed that the defendants had ignored her reported symptoms of a Crohn’s flair, which led to the perforation. The defendants claimed that the plaintiff had not had a Crohn’s flair during her pregnancy and that all of her complaints were attributable to the pregnancy.

Outcome
According to a published account, a defense verdict was returned.

Comment
Pain in a pregnant woman needs an explanation. The finding early in the patient’s pregnancy that there was no Crohn’s flare did not mean that a flare would not occur later. The defendants prevailed, but it appears that the obstetricians failed to determine a cause for the pain. If the obstetricians had kept the gastroenterologist in the loop, they might have been able to prevent the loss of bowel. —JP

Oral Neoplasm Goes Undiagnosed
An Ohio woman was under the care of Dr. V. from 1998 to 2006. She was being treated for fibrocystic breast disease, cysts, phyllodes tumor, and carcinoma. In 2006, the patient developed a malignant spindle-cell neoplasm in her mouth. The lesion metastasized to her lungs and brain, and she died in February 2007.

The plaintiff claimed that the defendant was negligent in her treatment of the decedent.

Outcome
According to a published account, a defense verdict was returned.

Comment
Failing to look into the oral cavity and then investigate any suspicious lesions—especially in a patient with a history of cancer—falls below the standard of care. Unfortunately, many clinicians have not had adequate education in oral health care and do not include an oral exam as a routine part of the physical examination. —RDD     

Delayed Referral Renders Tendon Injury Irreparable
At age 39, a Nevada man sustained a complete rupture of his left distal biceps tendon after experiencing a hyperextension injury that occurred when a ping-pong table he was unloading suddenly slipped off the truck. The plaintiff was a personal trainer and a champion bodybuilder.

The injury was initially diagnosed at a non-party medical center; there, the patient was referred to a non-party orthopedist who recommended surgical repair to correct the deformity while preserving the man’s strength. The orthopedist believed that the time in which surgical correction could be accomplished was limited.

The patient decided instead to go to a Veterans Administration facility for care; he was seen by the defendant internist in the VA triage department one week after the injury. According to the patient, the defendant told him that there was no urgency to schedule the surgery and gave him a nonurgent referral to a VA orthopedist. The man also reported that the defendant ordered a nonurgent magnetic resonance angiogram (MRA) of the arm, filled out the proper VA forms for an orthopedic referral, prescribed ibuprofen and hydrocodone with acetaminophen, and instructed the patient to use a sling.

It was not until about six weeks after his injury that the patient saw a VA orthopedist, who then referred him back to the non-party orthopedist for surgery. The surgery was performed about nine weeks after the injury. By that time, the proximal tendon was found to be scarred and could not be reattached.

The plaintiff alleged that the cosmetic deformity and loss of strength in the arm could not be corrected. He claimed that an MRI, not an MRA, should have been ordered by the defendant, and that the defendant failed to obtain for him a timely referral to an orthopedic surgeon.

The defendant claimed that he had taken all of the proper steps to comply with the VA’s referral procedure. The defendant charged the plaintiff with contributory negligence for not seeing an orthopedist sooner and for his history of using anabolic steroids.

Outcome
According to a published report, a defense verdict was returned.

Comment
As in most malpractice cases, the “blame” is rarely black and white. While this is true in this case, it brings an important issue to bear. Timely referrals are extremely important, especially in orthopedic injuries, such as the one in this case. Referral policies should be reexamined to avoid lengthy referral times—particularly when a large organization is involved. —RDD