David M. Lang, JD

In April 2001, a woman with a 25-year history of smoking presented to a PA (who had a medical doctorate but was not licensed as a physician) with complaints of cough and difficulty breathing. The PA diagnosed bronchitis and tobacco abuse and provided cough medicine and an inhaler.

In the next four months, the woman saw the PA several more times. Her symptoms at those visits included headache, sore throat, and coughing up blood. The PA’s diagnoses included bronchitis, seasonal allergies, chronic sinusitis, and tobacco abuse. Medications were provided at the visits.

The woman also consulted an allergist in July and August 2001. The allergist concluded that the patient did not have allergies, and her chest x-rays were normal.

Dissatisfied with her treatment, the patient then went to otolaryngologist Dr. W., who advertised extensively on billboards and saw as many as 100 patients per day. Allegedly, Dr. W. performed only a perfunctory examination and never examined the patient’s larynx. He told the patient that her sinuses were full of polyps and that she required surgery.

The surgery was performed in October 2001. Dr. W. subsequently performed six additional procedures, after which the patient’s condition deteriorated.

In early December 2001, unable to breathe, the patient was taken by ambulance to an emergency department, where x-rays revealed an abnormality. Five days later, another otolaryngologist diagnosed stage IV laryngeal cancer. The woman died in September 2004.

The plaintiff claimed that the cancer had been at stage I when the decedent was seen by the PA and at stage IV when she consulted Dr. W. The plaintiff claimed that a diagnosis of cancer by the PA or Dr. W. would have allowed the decedent to receive radiation therapy with limited surgery, which would have allowed her to survive. In addition to the missed diagnosis, the plaintiff claimed that Dr. W. had fabricated test results and performed unnecessary surgery, which compromised the decedent’s immune system and caused an explosive growth in the cancerous tumor.

The PA denied any negligence. Dr. W.’s response was to liquidate his assets, transfer funds, and study foreign languages. He took his family on a vacation to Greece just after the patient’s death. One morning while on vacation, Dr. W. went jogging and did not return.

This case was one of more than 350 medical malpractice cases filed against Dr. W. and the first to go to trial. Dr. W. lost his ­medical license and was charged with health care fraud. In December 2009, Dr. W. was found living in a tent on a mountain in Italy. He was extradited back to the United States and pled guilty to the ­criminal charges against him. His plea agreement requires restitution to the patients he admits to defrauding.

Dr. W. finally defended the case at issue, maintaining that the decedent’s cancer was already at stage IV when he saw her, so his treatment did not affect the ­outcome.

Continue for the outcome >>

OUTCOME

A defense verdict was returned for the PA. A jury awarded a $13 ­million verdict against Dr. W., which included $10 million in punitive damages. The court later reduced the amount to the statutory cap of $1.25 million in compensatory and $9 million in punitive damages.

Related to this case, Dr. W.’s medical malpractice insurer filed a claim in federal court, arguing that the doctor’s flight from the country voided his coverage. That suit is still pending.

COMMENT

This case begins with a cough and ends with an otolaryngologist holed up in a tent on a mountain in Italy. Where to begin?

First, beware of bounce-back patients. This patient saw the PA several times in four months and received diagnoses of bronchitis, tobacco use, seasonal allergies, and chronic sinusitis. Sore throat and hemoptysis in a patient with a 25-year smoking history should have provided clues that the source of the bleeding was not the sinuses, but somewhere else in the respiratory tract. The patient presented with substantially similar symptoms over a relatively short course.

Many malpractice cases begin with a patient who repeats the same complaint and end with a missed diagnosis. In sum, in the setting of tobacco use, consider oropharyngeal cancer of all types. Always reconsider a prior diagnosis if it feels forced, and when a patient returns several times with the same complaint (without an established diagnosis), step back, ask if something is being missed, and consider consulting a colleague for some “fresh eyes” on the case. Here, despite the patient’s continual visits for the same problem, the jury was not persuaded that the PA breached the standard of care.

Second, nefarious clinicians guarantee litigation and punitive damages. If you share a patient with these clinicians, eventually you will be involved in litigation. Here, the otolaryngologist’s actions were so repugnant that the jury felt compelled to award punitive damages. The PA was caught up in a suit that may not have been filed or maintained without the extreme malfeasance of one of the other treating clinicians.

Generally, after a malpractice case is filed, defense counsel will determine if it is possible to maintain a unified defense, without ­infighting between clinicians. Sometimes this is possible and other times it is not. Here, the otolaryngologist apparently performed seven sinus polyp surgeries from October to December, barely examined the patient, and fabricated test results—all while seeing up to 99 additional patients a day. 

The PA’s attorney did her best to distance her client from the otolaryngologist’s actions, and she was successful in convincing the jury that her client’s conduct did not breach the standard of care. She was no doubt aided by the PA’s genuine concern for the patient and his efforts to address her problem.

If your practice environment includes or collaborates with a questionable clinician, it is only a matter of time before you will be named in a suit along with that clinician. Do your best to protect the patient and distinguish your actions from obvious wrongdoing. In cases of patently obvious moral wrongdoing, report the offending clinician to the state medical board.  

Third, do not let the mere presence of a lawsuit ruin your life. Having worked as a PA first and a defense attorney later, I shared the litigation worries that all practicing clinicians have. After transitioning into the world of medical malpractice defense, I saw that suits are filed, cases will be decided, and medicine is relatively high risk (particularly in the areas of obstetrics, anesthesia, surgery, and emergency medicine). Some claims are valid; others are not.

If you are sued, let your attorney help you with the case; don’t let it rob you of all your life’s joys and successes, and don’t let it paralyze your ability to practice. Just being named in a suit does not equate to liability: You may be cleared in the end. —DML

In April 2001, a woman with a 25-year history of smoking presented to a PA (who had a medical doctorate but was not licensed as a physician) with complaints of cough and difficulty breathing. The PA diagnosed bronchitis and tobacco abuse and provided cough medicine and an inhaler.

In the next four months, the woman saw the PA several more times. Her symptoms at those visits included headache, sore throat, and coughing up blood. The PA’s diagnoses included bronchitis, seasonal allergies, chronic sinusitis, and tobacco abuse. Medications were provided at the visits.

The woman also consulted an allergist in July and August 2001. The allergist concluded that the patient did not have allergies, and her chest x-rays were normal.

Dissatisfied with her treatment, the patient then went to otolaryngologist Dr. W., who advertised extensively on billboards and saw as many as 100 patients per day. Allegedly, Dr. W. performed only a perfunctory examination and never examined the patient’s larynx. He told the patient that her sinuses were full of polyps and that she required surgery.

The surgery was performed in October 2001. Dr. W. subsequently performed six additional procedures, after which the patient’s condition deteriorated.

In early December 2001, unable to breathe, the patient was taken by ambulance to an emergency department, where x-rays revealed an abnormality. Five days later, another otolaryngologist diagnosed stage IV laryngeal cancer. The woman died in September 2004.

The plaintiff claimed that the cancer had been at stage I when the decedent was seen by the PA and at stage IV when she consulted Dr. W. The plaintiff claimed that a diagnosis of cancer by the PA or Dr. W. would have allowed the decedent to receive radiation therapy with limited surgery, which would have allowed her to survive. In addition to the missed diagnosis, the plaintiff claimed that Dr. W. had fabricated test results and performed unnecessary surgery, which compromised the decedent’s immune system and caused an explosive growth in the cancerous tumor.

The PA denied any negligence. Dr. W.’s response was to liquidate his assets, transfer funds, and study foreign languages. He took his family on a vacation to Greece just after the patient’s death. One morning while on vacation, Dr. W. went jogging and did not return.

This case was one of more than 350 medical malpractice cases filed against Dr. W. and the first to go to trial. Dr. W. lost his ­medical license and was charged with health care fraud. In December 2009, Dr. W. was found living in a tent on a mountain in Italy. He was extradited back to the United States and pled guilty to the ­criminal charges against him. His plea agreement requires restitution to the patients he admits to defrauding.

Dr. W. finally defended the case at issue, maintaining that the decedent’s cancer was already at stage IV when he saw her, so his treatment did not affect the ­outcome.

Continue for the outcome >>

OUTCOME

A defense verdict was returned for the PA. A jury awarded a $13 ­million verdict against Dr. W., which included $10 million in punitive damages. The court later reduced the amount to the statutory cap of $1.25 million in compensatory and $9 million in punitive damages.

Related to this case, Dr. W.’s medical malpractice insurer filed a claim in federal court, arguing that the doctor’s flight from the country voided his coverage. That suit is still pending.

COMMENT

This case begins with a cough and ends with an otolaryngologist holed up in a tent on a mountain in Italy. Where to begin?

First, beware of bounce-back patients. This patient saw the PA several times in four months and received diagnoses of bronchitis, tobacco use, seasonal allergies, and chronic sinusitis. Sore throat and hemoptysis in a patient with a 25-year smoking history should have provided clues that the source of the bleeding was not the sinuses, but somewhere else in the respiratory tract. The patient presented with substantially similar symptoms over a relatively short course.

Many malpractice cases begin with a patient who repeats the same complaint and end with a missed diagnosis. In sum, in the setting of tobacco use, consider oropharyngeal cancer of all types. Always reconsider a prior diagnosis if it feels forced, and when a patient returns several times with the same complaint (without an established diagnosis), step back, ask if something is being missed, and consider consulting a colleague for some “fresh eyes” on the case. Here, despite the patient’s continual visits for the same problem, the jury was not persuaded that the PA breached the standard of care.

Second, nefarious clinicians guarantee litigation and punitive damages. If you share a patient with these clinicians, eventually you will be involved in litigation. Here, the otolaryngologist’s actions were so repugnant that the jury felt compelled to award punitive damages. The PA was caught up in a suit that may not have been filed or maintained without the extreme malfeasance of one of the other treating clinicians.

Generally, after a malpractice case is filed, defense counsel will determine if it is possible to maintain a unified defense, without ­infighting between clinicians. Sometimes this is possible and other times it is not. Here, the otolaryngologist apparently performed seven sinus polyp surgeries from October to December, barely examined the patient, and fabricated test results—all while seeing up to 99 additional patients a day. 

The PA’s attorney did her best to distance her client from the otolaryngologist’s actions, and she was successful in convincing the jury that her client’s conduct did not breach the standard of care. She was no doubt aided by the PA’s genuine concern for the patient and his efforts to address her problem.

If your practice environment includes or collaborates with a questionable clinician, it is only a matter of time before you will be named in a suit along with that clinician. Do your best to protect the patient and distinguish your actions from obvious wrongdoing. In cases of patently obvious moral wrongdoing, report the offending clinician to the state medical board.  

Third, do not let the mere presence of a lawsuit ruin your life. Having worked as a PA first and a defense attorney later, I shared the litigation worries that all practicing clinicians have. After transitioning into the world of medical malpractice defense, I saw that suits are filed, cases will be decided, and medicine is relatively high risk (particularly in the areas of obstetrics, anesthesia, surgery, and emergency medicine). Some claims are valid; others are not.

If you are sued, let your attorney help you with the case; don’t let it rob you of all your life’s joys and successes, and don’t let it paralyze your ability to practice. Just being named in a suit does not equate to liability: You may be cleared in the end. —DML

In April 2001, a woman with a 25-year history of smoking presented to a PA (who had a medical doctorate but was not licensed as a physician) with complaints of cough and difficulty breathing. The PA diagnosed bronchitis and tobacco abuse and provided cough medicine and an inhaler.

In the next four months, the woman saw the PA several more times. Her symptoms at those visits included headache, sore throat, and coughing up blood. The PA’s diagnoses included bronchitis, seasonal allergies, chronic sinusitis, and tobacco abuse. Medications were provided at the visits.

The woman also consulted an allergist in July and August 2001. The allergist concluded that the patient did not have allergies, and her chest x-rays were normal.

Dissatisfied with her treatment, the patient then went to otolaryngologist Dr. W., who advertised extensively on billboards and saw as many as 100 patients per day. Allegedly, Dr. W. performed only a perfunctory examination and never examined the patient’s larynx. He told the patient that her sinuses were full of polyps and that she required surgery.

The surgery was performed in October 2001. Dr. W. subsequently performed six additional procedures, after which the patient’s condition deteriorated.

In early December 2001, unable to breathe, the patient was taken by ambulance to an emergency department, where x-rays revealed an abnormality. Five days later, another otolaryngologist diagnosed stage IV laryngeal cancer. The woman died in September 2004.

The plaintiff claimed that the cancer had been at stage I when the decedent was seen by the PA and at stage IV when she consulted Dr. W. The plaintiff claimed that a diagnosis of cancer by the PA or Dr. W. would have allowed the decedent to receive radiation therapy with limited surgery, which would have allowed her to survive. In addition to the missed diagnosis, the plaintiff claimed that Dr. W. had fabricated test results and performed unnecessary surgery, which compromised the decedent’s immune system and caused an explosive growth in the cancerous tumor.

The PA denied any negligence. Dr. W.’s response was to liquidate his assets, transfer funds, and study foreign languages. He took his family on a vacation to Greece just after the patient’s death. One morning while on vacation, Dr. W. went jogging and did not return.

This case was one of more than 350 medical malpractice cases filed against Dr. W. and the first to go to trial. Dr. W. lost his ­medical license and was charged with health care fraud. In December 2009, Dr. W. was found living in a tent on a mountain in Italy. He was extradited back to the United States and pled guilty to the ­criminal charges against him. His plea agreement requires restitution to the patients he admits to defrauding.

Dr. W. finally defended the case at issue, maintaining that the decedent’s cancer was already at stage IV when he saw her, so his treatment did not affect the ­outcome.

Continue for the outcome >>

OUTCOME

A defense verdict was returned for the PA. A jury awarded a $13 ­million verdict against Dr. W., which included $10 million in punitive damages. The court later reduced the amount to the statutory cap of $1.25 million in compensatory and $9 million in punitive damages.

Related to this case, Dr. W.’s medical malpractice insurer filed a claim in federal court, arguing that the doctor’s flight from the country voided his coverage. That suit is still pending.

COMMENT

This case begins with a cough and ends with an otolaryngologist holed up in a tent on a mountain in Italy. Where to begin?

First, beware of bounce-back patients. This patient saw the PA several times in four months and received diagnoses of bronchitis, tobacco use, seasonal allergies, and chronic sinusitis. Sore throat and hemoptysis in a patient with a 25-year smoking history should have provided clues that the source of the bleeding was not the sinuses, but somewhere else in the respiratory tract. The patient presented with substantially similar symptoms over a relatively short course.

Many malpractice cases begin with a patient who repeats the same complaint and end with a missed diagnosis. In sum, in the setting of tobacco use, consider oropharyngeal cancer of all types. Always reconsider a prior diagnosis if it feels forced, and when a patient returns several times with the same complaint (without an established diagnosis), step back, ask if something is being missed, and consider consulting a colleague for some “fresh eyes” on the case. Here, despite the patient’s continual visits for the same problem, the jury was not persuaded that the PA breached the standard of care.

Second, nefarious clinicians guarantee litigation and punitive damages. If you share a patient with these clinicians, eventually you will be involved in litigation. Here, the otolaryngologist’s actions were so repugnant that the jury felt compelled to award punitive damages. The PA was caught up in a suit that may not have been filed or maintained without the extreme malfeasance of one of the other treating clinicians.

Generally, after a malpractice case is filed, defense counsel will determine if it is possible to maintain a unified defense, without ­infighting between clinicians. Sometimes this is possible and other times it is not. Here, the otolaryngologist apparently performed seven sinus polyp surgeries from October to December, barely examined the patient, and fabricated test results—all while seeing up to 99 additional patients a day. 

The PA’s attorney did her best to distance her client from the otolaryngologist’s actions, and she was successful in convincing the jury that her client’s conduct did not breach the standard of care. She was no doubt aided by the PA’s genuine concern for the patient and his efforts to address her problem.

If your practice environment includes or collaborates with a questionable clinician, it is only a matter of time before you will be named in a suit along with that clinician. Do your best to protect the patient and distinguish your actions from obvious wrongdoing. In cases of patently obvious moral wrongdoing, report the offending clinician to the state medical board.  

Third, do not let the mere presence of a lawsuit ruin your life. Having worked as a PA first and a defense attorney later, I shared the litigation worries that all practicing clinicians have. After transitioning into the world of medical malpractice defense, I saw that suits are filed, cases will be decided, and medicine is relatively high risk (particularly in the areas of obstetrics, anesthesia, surgery, and emergency medicine). Some claims are valid; others are not.

If you are sued, let your attorney help you with the case; don’t let it rob you of all your life’s joys and successes, and don’t let it paralyze your ability to practice. Just being named in a suit does not equate to liability: You may be cleared in the end. —DML