David M. Lang, JD, PA-C

In September 2006, a 42-year-old woman was transported to a medical center in New York City with symptoms of a manic bipolar episode. She was admitted and stabilized, and she remained in the hospital for 11 days.

During her hospitalization, an MRI of the brain was performed. The radiologist initially noted no significant findings. However, several hours later, he prepared an addendum to his report, indicating the presence of a mass suggestive of a meningioma. The addendum was never transmitted to the patient’s attending physician, and she was discharged.

In December 2007, the patient had a seizure and was transported to the same medical center. The physician who reviewed the patient’s records discovered the addendum to the MRI report. It was determined that the seizure was caused by the meningioma.

The tumor was surgically removed but recurred, necessitating a second procedure. The patient continues to experience periodic seizures. She claimed that the defendants failed to timely treat her meningioma.

The matter ultimately proceeded against only the radiologist and the hospital. The plaintiff specifically claimed that the radiologist should have ensured that the addendum was transmitted to her physicians.

The defendant claimed that any failure to immediately address the meningioma did not change the patient’s outcome and that the treatment at that time would have entailed monitoring the tumor for signs of growth.

Outcome

According to a published account, a $4 million settlement was reached.

Comment

This case is frustrating: Frustrating because the radiologist made the correct interpretation, but that information never made it to the patient’s primary provider. He made the right diagnostic call—how can he be on the hook for a hospital-related “systems error”?  

A frustrated patient injured by a systems error will attempt to blame everyone, including the clinician. Will the jury be persuaded to blame the clinician too? It depends on the interrelationship between the clinician’s practice and the system that failed.

For example, if an ambulatory patient in a large HMO complex slips and falls on a recently mopped bathroom floor, there will be no case against a clinician because the arguable negligence was the failure to notify the patient that the floor was wet. The system that failed and the clinician’s services are distinct.

By contrast, if an unsteady ambulatory patient is examined by a clinician and then sent to walk down the hallway for x-rays, and the patient slips and falls, there is likely a case against the clinician. The clinician discovered that the patient was unsteady during the examination, and it was a foreseeable risk that an unsteady patient could fall and suffer injury. The plaintiff will claim that a reasonably prudent clinician, recognizing the risk, would arrange for wheelchair transport. 

In the present case, the radiologist and hospital settled for $4 million. We can rationally infer that the plaintiff’s legal team was able to produce an expert to testify (during deposition) that the standard of care required that the radiologist not just interpret the MRI correctly, but also ensure that the test’s findings were communicated to the patient’s attending physician.

Would a jury agree and fault the radiologist for the “systems error”? We don’t know. We do know the plaintiff’s attorney felt this argument was strong enough to keep the radiologist in the case and force a settlement against him—which usually results in an adverse National Practitioner Data Bank recording.  

What risks exist in your practice? Once a clinician-patient relationship is established, risks that seem out of your control could land you with liability if a jury believes that the elimination of that risk was in your control—and therefore your responsibility.

Once a clinician-patient relationship is established, take reasonable steps to protect patients. Between the extremes of omniscience at one end of the spectrum and willful blindness on the other, we are left with the clinician’s duty to avert reasonably foreseeable harms.

Here, if the radiologist had any reason to believe that the addendum may not have been forwarded, he had an obligation to take affirmative steps to ensure it was communicated. Yet, if his system had functioned previously without flaw, faulting him would be unfair. Apparently, the plaintiff’s attorney had some evidence suggesting that the radiologist had knowledge that the existing system was flawed—and under those circumstances, simply entering an addendum with the hope that it would be communicated was risky.

In sum, if you see potential harm looming for a patient, take action before “mere risk” materializes into actual harm. —DML

In September 2006, a 42-year-old woman was transported to a medical center in New York City with symptoms of a manic bipolar episode. She was admitted and stabilized, and she remained in the hospital for 11 days.

During her hospitalization, an MRI of the brain was performed. The radiologist initially noted no significant findings. However, several hours later, he prepared an addendum to his report, indicating the presence of a mass suggestive of a meningioma. The addendum was never transmitted to the patient’s attending physician, and she was discharged.

In December 2007, the patient had a seizure and was transported to the same medical center. The physician who reviewed the patient’s records discovered the addendum to the MRI report. It was determined that the seizure was caused by the meningioma.

The tumor was surgically removed but recurred, necessitating a second procedure. The patient continues to experience periodic seizures. She claimed that the defendants failed to timely treat her meningioma.

The matter ultimately proceeded against only the radiologist and the hospital. The plaintiff specifically claimed that the radiologist should have ensured that the addendum was transmitted to her physicians.

The defendant claimed that any failure to immediately address the meningioma did not change the patient’s outcome and that the treatment at that time would have entailed monitoring the tumor for signs of growth.

Outcome

According to a published account, a $4 million settlement was reached.

Comment

This case is frustrating: Frustrating because the radiologist made the correct interpretation, but that information never made it to the patient’s primary provider. He made the right diagnostic call—how can he be on the hook for a hospital-related “systems error”?  

A frustrated patient injured by a systems error will attempt to blame everyone, including the clinician. Will the jury be persuaded to blame the clinician too? It depends on the interrelationship between the clinician’s practice and the system that failed.

For example, if an ambulatory patient in a large HMO complex slips and falls on a recently mopped bathroom floor, there will be no case against a clinician because the arguable negligence was the failure to notify the patient that the floor was wet. The system that failed and the clinician’s services are distinct.

By contrast, if an unsteady ambulatory patient is examined by a clinician and then sent to walk down the hallway for x-rays, and the patient slips and falls, there is likely a case against the clinician. The clinician discovered that the patient was unsteady during the examination, and it was a foreseeable risk that an unsteady patient could fall and suffer injury. The plaintiff will claim that a reasonably prudent clinician, recognizing the risk, would arrange for wheelchair transport. 

In the present case, the radiologist and hospital settled for $4 million. We can rationally infer that the plaintiff’s legal team was able to produce an expert to testify (during deposition) that the standard of care required that the radiologist not just interpret the MRI correctly, but also ensure that the test’s findings were communicated to the patient’s attending physician.

Would a jury agree and fault the radiologist for the “systems error”? We don’t know. We do know the plaintiff’s attorney felt this argument was strong enough to keep the radiologist in the case and force a settlement against him—which usually results in an adverse National Practitioner Data Bank recording.  

What risks exist in your practice? Once a clinician-patient relationship is established, risks that seem out of your control could land you with liability if a jury believes that the elimination of that risk was in your control—and therefore your responsibility.

Once a clinician-patient relationship is established, take reasonable steps to protect patients. Between the extremes of omniscience at one end of the spectrum and willful blindness on the other, we are left with the clinician’s duty to avert reasonably foreseeable harms.

Here, if the radiologist had any reason to believe that the addendum may not have been forwarded, he had an obligation to take affirmative steps to ensure it was communicated. Yet, if his system had functioned previously without flaw, faulting him would be unfair. Apparently, the plaintiff’s attorney had some evidence suggesting that the radiologist had knowledge that the existing system was flawed—and under those circumstances, simply entering an addendum with the hope that it would be communicated was risky.

In sum, if you see potential harm looming for a patient, take action before “mere risk” materializes into actual harm. —DML

In September 2006, a 42-year-old woman was transported to a medical center in New York City with symptoms of a manic bipolar episode. She was admitted and stabilized, and she remained in the hospital for 11 days.

During her hospitalization, an MRI of the brain was performed. The radiologist initially noted no significant findings. However, several hours later, he prepared an addendum to his report, indicating the presence of a mass suggestive of a meningioma. The addendum was never transmitted to the patient’s attending physician, and she was discharged.

In December 2007, the patient had a seizure and was transported to the same medical center. The physician who reviewed the patient’s records discovered the addendum to the MRI report. It was determined that the seizure was caused by the meningioma.

The tumor was surgically removed but recurred, necessitating a second procedure. The patient continues to experience periodic seizures. She claimed that the defendants failed to timely treat her meningioma.

The matter ultimately proceeded against only the radiologist and the hospital. The plaintiff specifically claimed that the radiologist should have ensured that the addendum was transmitted to her physicians.

The defendant claimed that any failure to immediately address the meningioma did not change the patient’s outcome and that the treatment at that time would have entailed monitoring the tumor for signs of growth.

Outcome

According to a published account, a $4 million settlement was reached.

Comment

This case is frustrating: Frustrating because the radiologist made the correct interpretation, but that information never made it to the patient’s primary provider. He made the right diagnostic call—how can he be on the hook for a hospital-related “systems error”?  

A frustrated patient injured by a systems error will attempt to blame everyone, including the clinician. Will the jury be persuaded to blame the clinician too? It depends on the interrelationship between the clinician’s practice and the system that failed.

For example, if an ambulatory patient in a large HMO complex slips and falls on a recently mopped bathroom floor, there will be no case against a clinician because the arguable negligence was the failure to notify the patient that the floor was wet. The system that failed and the clinician’s services are distinct.

By contrast, if an unsteady ambulatory patient is examined by a clinician and then sent to walk down the hallway for x-rays, and the patient slips and falls, there is likely a case against the clinician. The clinician discovered that the patient was unsteady during the examination, and it was a foreseeable risk that an unsteady patient could fall and suffer injury. The plaintiff will claim that a reasonably prudent clinician, recognizing the risk, would arrange for wheelchair transport. 

In the present case, the radiologist and hospital settled for $4 million. We can rationally infer that the plaintiff’s legal team was able to produce an expert to testify (during deposition) that the standard of care required that the radiologist not just interpret the MRI correctly, but also ensure that the test’s findings were communicated to the patient’s attending physician.

Would a jury agree and fault the radiologist for the “systems error”? We don’t know. We do know the plaintiff’s attorney felt this argument was strong enough to keep the radiologist in the case and force a settlement against him—which usually results in an adverse National Practitioner Data Bank recording.  

What risks exist in your practice? Once a clinician-patient relationship is established, risks that seem out of your control could land you with liability if a jury believes that the elimination of that risk was in your control—and therefore your responsibility.

Once a clinician-patient relationship is established, take reasonable steps to protect patients. Between the extremes of omniscience at one end of the spectrum and willful blindness on the other, we are left with the clinician’s duty to avert reasonably foreseeable harms.

Here, if the radiologist had any reason to believe that the addendum may not have been forwarded, he had an obligation to take affirmative steps to ensure it was communicated. Yet, if his system had functioned previously without flaw, faulting him would be unfair. Apparently, the plaintiff’s attorney had some evidence suggesting that the radiologist had knowledge that the existing system was flawed—and under those circumstances, simply entering an addendum with the hope that it would be communicated was risky.

In sum, if you see potential harm looming for a patient, take action before “mere risk” materializes into actual harm. —DML

A 54-year-old woman with chronic renal disease was diagnosed with gout and prescribed allopurinol. Two days later, she was evaluated by her nephrologist, whom she informed about her new medication.

Subsequently, the patient developed fever and rash. Laboratory analysis indicated elevated transaminase levels and eosinophilia. She was admitted to the hospital.

During her stay, an infectious disease consultation was obtained, and the allopurinol was discontinued. When the patient’s condition improved, she was discharged. 

Following discharge, the patient resumed taking allopurinol, and her rash returned. Eleven days later, she returned to the hospital, where she was diagnosed with toxic epidermal necrolysis. She was found to have a desquamating rash covering 62% of her body. The patient was transferred to a burn center but eventually succumbed to multi-organ failure.

The patient’s estate filed a medical malpractice lawsuit against the nephrologist alleging negligence—specifically, failure to diagnose toxic epidermal necrolysis and failure to review her medications more carefully.

Outcome

A $5.1 million verdict was returned against the nephrologist.

Comment

Many medications cause rash and are subsequently withdrawn; in a few cases, the effects are life threatening. Toxic epidermal necrolysis (TEN) and Stevens-Johnson syndrome (SJS) are relatively uncommon but potentially fatal examples.

From the limited facts presented, we know that a 54-year-old woman with established renal disease of unknown magnitude was prescribed allopurinol for gout and consulted the nephrologist two days later. It is unclear if the patient had the rash during the first visit with her nephrologist. But we do know that she was eventually admitted and maintained on allopurinol while she had the rash, pending infectious disease consultation. At some point, the allopurinol was apparently stopped and the rash improved. After discharge, the patient resumed taking allopurinol. The rash not only returned but also worsened, necessitating her readmission to a burn center.

TEN, like SJS, is often induced by certain medications, including sulfonamides, macrolides, penicillins, and quinolones. Allopurinol, phenobarbital, phenytoin, carbamazepine, valproic acid, and lamotrigine are frequently implicated as well.   

TEN is rare but serious. The initial presentation may be subtle, with influenza-like symptoms such as malaise, fever, cough, rhinitis, headache, and arthralgia—and the most discriminating sign: rash.

The rash begins as a poorly defined, erythematous macular rash with purpuric centers. The lesions predominate on the torso and face, sparing the scalp. Mucosal membranes are involved in more than 90% of cases.¹ Pain at the site of the skin lesions is often the predominate symptom and is often out of proportion to physical findings. Over a period of hours to days, the rash coalesces to form flaccid blisters and sheetlike epidermal detachment.² In established cases, patients will nearly universally demonstrate Nikolsky’s sign: Mild frictional contact with the skin results in epithelial desquamation and immediate blistering. 

Management involves immediate withdrawal of the offending agent and hospitalization for aggressive management. The mortality rate is high (30% to 60%³) and generally attributed to sepsis or multi-organ failure.

As clinicians, we are sometimes hesitant to label a rash allergic—thereby forever disqualifying an entire class of useful agents from that patient. However, in this case, the fact that the rash occurred simultaneously with a constellation of signs and symptoms perhaps made the rash appear to be part of an infectious process and not a drug-induced reaction. That is the challenge with TEN and SJS: The symptoms are subtle, flu-like, and confounding. 

Here, the nephrologist apparently did not take action to stop the allopurinol after the patient first developed the rash. The jury was persuaded that a reasonably prudent clinician would have recognized the clinical presentation and stopped the allopurinol—and certainly not restarted it following discharge (especially after the allopurinol was stopped in the hospital and the rash began to improve).

This case brings to mind two physicians from my training who made an impression. The first was a second-year internal medicine resident. I remember quietly remarking to another student during rounds, “He is really good.” Overhearing, an attending physician answered, “He is really good because in his workup he always considers a presentation as a function of an underlying process, and walks through each of those processes in formulating his differential.” “Walking through” various disease categories forces the clinician to consider them all: infectious, autoimmune, neoplastic, environmental/toxic, vascular, traumatic, metabolic, inflammatory. In challenging cases, I’ve found it helpful to step backward into those broad basic categories of disease and reconsider the clinical picture. Here, doing so may have allowed the clinician to reconsider inflammatory and autoimmune processes and revisit the possibility of iatrogenic toxic/environmental causes (ie, the allopurinol).

The second physician was a nephrology fellow, who left me with this: “When in doubt, blame the drug.” Since nephrologists are expert drug-blamers, I suspect the early stages of this unfortunate case presented a clinical challenge. In sum, before you “missile lock” onto a diagnosis, consider taking a mental step back to consider broad categories of disease. —DML

References

1. Letko E, Papaliodis DN, Papaliodis GN, et al. Stevens-Johnson syndrome and toxic epidermal necrolysis: a review of the literature. Ann Allergy Asthma Immunol. 2005;94(4):419-436.

2. Cohen V, Jellinek SP, Schwartz RA, et al. Toxic epidermal necrolysis.  Medscape; 2013.  http://emedicine.medscape.com/article/229698-overview. Accessed September 9, 2013.

3. Schulz JT, Sheridan RL, Ryan CM, et al. A 10-year experience with toxic epidermal necrolysis.
J Burn Care Rehabil. 2000;21(3):199-204.

A 54-year-old woman with chronic renal disease was diagnosed with gout and prescribed allopurinol. Two days later, she was evaluated by her nephrologist, whom she informed about her new medication.

Subsequently, the patient developed fever and rash. Laboratory analysis indicated elevated transaminase levels and eosinophilia. She was admitted to the hospital.

During her stay, an infectious disease consultation was obtained, and the allopurinol was discontinued. When the patient’s condition improved, she was discharged. 

Following discharge, the patient resumed taking allopurinol, and her rash returned. Eleven days later, she returned to the hospital, where she was diagnosed with toxic epidermal necrolysis. She was found to have a desquamating rash covering 62% of her body. The patient was transferred to a burn center but eventually succumbed to multi-organ failure.

The patient’s estate filed a medical malpractice lawsuit against the nephrologist alleging negligence—specifically, failure to diagnose toxic epidermal necrolysis and failure to review her medications more carefully.

Outcome

A $5.1 million verdict was returned against the nephrologist.

Comment

Many medications cause rash and are subsequently withdrawn; in a few cases, the effects are life threatening. Toxic epidermal necrolysis (TEN) and Stevens-Johnson syndrome (SJS) are relatively uncommon but potentially fatal examples.

From the limited facts presented, we know that a 54-year-old woman with established renal disease of unknown magnitude was prescribed allopurinol for gout and consulted the nephrologist two days later. It is unclear if the patient had the rash during the first visit with her nephrologist. But we do know that she was eventually admitted and maintained on allopurinol while she had the rash, pending infectious disease consultation. At some point, the allopurinol was apparently stopped and the rash improved. After discharge, the patient resumed taking allopurinol. The rash not only returned but also worsened, necessitating her readmission to a burn center.

TEN, like SJS, is often induced by certain medications, including sulfonamides, macrolides, penicillins, and quinolones. Allopurinol, phenobarbital, phenytoin, carbamazepine, valproic acid, and lamotrigine are frequently implicated as well.   

TEN is rare but serious. The initial presentation may be subtle, with influenza-like symptoms such as malaise, fever, cough, rhinitis, headache, and arthralgia—and the most discriminating sign: rash.

The rash begins as a poorly defined, erythematous macular rash with purpuric centers. The lesions predominate on the torso and face, sparing the scalp. Mucosal membranes are involved in more than 90% of cases.¹ Pain at the site of the skin lesions is often the predominate symptom and is often out of proportion to physical findings. Over a period of hours to days, the rash coalesces to form flaccid blisters and sheetlike epidermal detachment.² In established cases, patients will nearly universally demonstrate Nikolsky’s sign: Mild frictional contact with the skin results in epithelial desquamation and immediate blistering. 

Management involves immediate withdrawal of the offending agent and hospitalization for aggressive management. The mortality rate is high (30% to 60%³) and generally attributed to sepsis or multi-organ failure.

As clinicians, we are sometimes hesitant to label a rash allergic—thereby forever disqualifying an entire class of useful agents from that patient. However, in this case, the fact that the rash occurred simultaneously with a constellation of signs and symptoms perhaps made the rash appear to be part of an infectious process and not a drug-induced reaction. That is the challenge with TEN and SJS: The symptoms are subtle, flu-like, and confounding. 

Here, the nephrologist apparently did not take action to stop the allopurinol after the patient first developed the rash. The jury was persuaded that a reasonably prudent clinician would have recognized the clinical presentation and stopped the allopurinol—and certainly not restarted it following discharge (especially after the allopurinol was stopped in the hospital and the rash began to improve).

This case brings to mind two physicians from my training who made an impression. The first was a second-year internal medicine resident. I remember quietly remarking to another student during rounds, “He is really good.” Overhearing, an attending physician answered, “He is really good because in his workup he always considers a presentation as a function of an underlying process, and walks through each of those processes in formulating his differential.” “Walking through” various disease categories forces the clinician to consider them all: infectious, autoimmune, neoplastic, environmental/toxic, vascular, traumatic, metabolic, inflammatory. In challenging cases, I’ve found it helpful to step backward into those broad basic categories of disease and reconsider the clinical picture. Here, doing so may have allowed the clinician to reconsider inflammatory and autoimmune processes and revisit the possibility of iatrogenic toxic/environmental causes (ie, the allopurinol).

The second physician was a nephrology fellow, who left me with this: “When in doubt, blame the drug.” Since nephrologists are expert drug-blamers, I suspect the early stages of this unfortunate case presented a clinical challenge. In sum, before you “missile lock” onto a diagnosis, consider taking a mental step back to consider broad categories of disease. —DML

References

1. Letko E, Papaliodis DN, Papaliodis GN, et al. Stevens-Johnson syndrome and toxic epidermal necrolysis: a review of the literature. Ann Allergy Asthma Immunol. 2005;94(4):419-436.

2. Cohen V, Jellinek SP, Schwartz RA, et al. Toxic epidermal necrolysis.  Medscape; 2013.  http://emedicine.medscape.com/article/229698-overview. Accessed September 9, 2013.

3. Schulz JT, Sheridan RL, Ryan CM, et al. A 10-year experience with toxic epidermal necrolysis.
J Burn Care Rehabil. 2000;21(3):199-204.

A 54-year-old woman with chronic renal disease was diagnosed with gout and prescribed allopurinol. Two days later, she was evaluated by her nephrologist, whom she informed about her new medication.

Subsequently, the patient developed fever and rash. Laboratory analysis indicated elevated transaminase levels and eosinophilia. She was admitted to the hospital.

During her stay, an infectious disease consultation was obtained, and the allopurinol was discontinued. When the patient’s condition improved, she was discharged. 

Following discharge, the patient resumed taking allopurinol, and her rash returned. Eleven days later, she returned to the hospital, where she was diagnosed with toxic epidermal necrolysis. She was found to have a desquamating rash covering 62% of her body. The patient was transferred to a burn center but eventually succumbed to multi-organ failure.

The patient’s estate filed a medical malpractice lawsuit against the nephrologist alleging negligence—specifically, failure to diagnose toxic epidermal necrolysis and failure to review her medications more carefully.

Outcome

A $5.1 million verdict was returned against the nephrologist.

Comment

Many medications cause rash and are subsequently withdrawn; in a few cases, the effects are life threatening. Toxic epidermal necrolysis (TEN) and Stevens-Johnson syndrome (SJS) are relatively uncommon but potentially fatal examples.

From the limited facts presented, we know that a 54-year-old woman with established renal disease of unknown magnitude was prescribed allopurinol for gout and consulted the nephrologist two days later. It is unclear if the patient had the rash during the first visit with her nephrologist. But we do know that she was eventually admitted and maintained on allopurinol while she had the rash, pending infectious disease consultation. At some point, the allopurinol was apparently stopped and the rash improved. After discharge, the patient resumed taking allopurinol. The rash not only returned but also worsened, necessitating her readmission to a burn center.

TEN, like SJS, is often induced by certain medications, including sulfonamides, macrolides, penicillins, and quinolones. Allopurinol, phenobarbital, phenytoin, carbamazepine, valproic acid, and lamotrigine are frequently implicated as well.   

TEN is rare but serious. The initial presentation may be subtle, with influenza-like symptoms such as malaise, fever, cough, rhinitis, headache, and arthralgia—and the most discriminating sign: rash.

The rash begins as a poorly defined, erythematous macular rash with purpuric centers. The lesions predominate on the torso and face, sparing the scalp. Mucosal membranes are involved in more than 90% of cases.¹ Pain at the site of the skin lesions is often the predominate symptom and is often out of proportion to physical findings. Over a period of hours to days, the rash coalesces to form flaccid blisters and sheetlike epidermal detachment.² In established cases, patients will nearly universally demonstrate Nikolsky’s sign: Mild frictional contact with the skin results in epithelial desquamation and immediate blistering. 

Management involves immediate withdrawal of the offending agent and hospitalization for aggressive management. The mortality rate is high (30% to 60%³) and generally attributed to sepsis or multi-organ failure.

As clinicians, we are sometimes hesitant to label a rash allergic—thereby forever disqualifying an entire class of useful agents from that patient. However, in this case, the fact that the rash occurred simultaneously with a constellation of signs and symptoms perhaps made the rash appear to be part of an infectious process and not a drug-induced reaction. That is the challenge with TEN and SJS: The symptoms are subtle, flu-like, and confounding. 

Here, the nephrologist apparently did not take action to stop the allopurinol after the patient first developed the rash. The jury was persuaded that a reasonably prudent clinician would have recognized the clinical presentation and stopped the allopurinol—and certainly not restarted it following discharge (especially after the allopurinol was stopped in the hospital and the rash began to improve).

This case brings to mind two physicians from my training who made an impression. The first was a second-year internal medicine resident. I remember quietly remarking to another student during rounds, “He is really good.” Overhearing, an attending physician answered, “He is really good because in his workup he always considers a presentation as a function of an underlying process, and walks through each of those processes in formulating his differential.” “Walking through” various disease categories forces the clinician to consider them all: infectious, autoimmune, neoplastic, environmental/toxic, vascular, traumatic, metabolic, inflammatory. In challenging cases, I’ve found it helpful to step backward into those broad basic categories of disease and reconsider the clinical picture. Here, doing so may have allowed the clinician to reconsider inflammatory and autoimmune processes and revisit the possibility of iatrogenic toxic/environmental causes (ie, the allopurinol).

The second physician was a nephrology fellow, who left me with this: “When in doubt, blame the drug.” Since nephrologists are expert drug-blamers, I suspect the early stages of this unfortunate case presented a clinical challenge. In sum, before you “missile lock” onto a diagnosis, consider taking a mental step back to consider broad categories of disease. —DML

References

1. Letko E, Papaliodis DN, Papaliodis GN, et al. Stevens-Johnson syndrome and toxic epidermal necrolysis: a review of the literature. Ann Allergy Asthma Immunol. 2005;94(4):419-436.

2. Cohen V, Jellinek SP, Schwartz RA, et al. Toxic epidermal necrolysis.  Medscape; 2013.  http://emedicine.medscape.com/article/229698-overview. Accessed September 9, 2013.

3. Schulz JT, Sheridan RL, Ryan CM, et al. A 10-year experience with toxic epidermal necrolysis.
J Burn Care Rehabil. 2000;21(3):199-204.

A 17-year-old girl underwent a routine tonsillectomy without complications at a surgical center. Following the procedure, the patient was returned to the recovery room and administered fentanyl for pain. 

The recovery room nurse assigned to monitor the patient spent 20 minutes treating another patient and then went on break, signing out to a second recovery room nurse. On receiving the signout, the second recovery room nurse discovered that the patient was in respiratory distress and began resuscitation efforts. The patient was resuscitated but died 15 days later.

The plaintiff claimed that the girl was left unmonitored by nurses assigned to the unit and that the monitoring equipment was not used, not set properly, or muted.

During her deposition, the second recovery room nurse admitted under oath that the first recovery room nurse falsified the patient’s chart; the first nurse claimed that she had assessed the patient during an important time period when she had not.  

OUTCOME
The case was settled for $6 million: $1 million against the surgical center’s primary policy and $5 million against its excess policy.

COMMENT
Cases such as this one are unfortunate and avoidable—and tragically, too common. On any medical malpractice lawyer’s desk is a teetering stack of potential cases; much of that stack involves narcotics. This case raises two important areas to discuss: the dangers of parenteral narcotics and the perils of falsifying medical records.

First, when parenteral narcotics are given, proper monitoring safeguards must be in place. Malpractice cases frequently involve a scenario in which patients are given parenteral narcotics and left alone, out of sight, and unmonitored. This simply can’t be done. Close supervision and monitoring—with both equipment and eyes—are required to safeguard your patients and avoid malpractice risk. 

Other malpractice scenarios involve the ambulatory patient who is given parenteral narcotics in a clinic setting and discharged after a 10-minute “observation” period—a period during which peak drug effect is probably not realized. The patient is unsafely discharged before that peak is reached and suffers potentially fatal side effects. Even when direct fatal effects are not realized, the patient is discharged with impaired motor coordination and cognitive judgment, placing the patient at risk in his/her surroundings.

If a clinician commits to giving parenteral narcotics, he or she commits to providing “real-time” monitoring until the narcotic effects have safely diminished and the patient’s condition is thoroughly documented in the record. Generally speaking, the patient must be reasonably clear of the effects of narcotics before discharge. (Remember the special case of naloxone, administered for opiate excesses, in which narcan is metabolized before the opiate; the patient can relapse into a coma/apnea if the naloxone fully metabolizes before the opiate.)

Here, this young woman was probably opiate naïve. While the amount she was given was certain, her response to the drug was not. She was left alone for at least 20 minutes and did not have a functioning SaO₂ monitor. Close monitoring of this patient was required but not provided.

As a result of this case, the surgical center changed several policies: Nurses must be on a one-to-one ratio with patients who have received narcotics during anesthesia. Furthermore, nurses must have line-of-sight to see patients at all times, and importantly, may not mute monitors (eg, oximetry monitors). 

The second salient point of this case is never, ever alter or falsify patient records! It will be discovered, and your credibility will be irretrievably damaged. Plaintiff lawyers live for this, and yet clinicians continue to do it. Don’t.

When altered medical records are discovered, the plaintiff’s theory of the case will be “cover up,” and jurors will be invited to punish the clinician for it. The jurors will do so. 

Also problematic is a case that is otherwise defensible, but which becomes much more difficult to defend because a clinician has altered the records. Remember, the plaintiff must prove all aspects of negligence, including causation and damages. In some cases, the clinician knows an obvious mistake was made, but does not know that the eventual damages may be minimal or attributable to another cause. By altering the medical record, the clinician may enhance the damages value of a case by introducing a punitive element. Altering records may result in a lawsuit being filed when it otherwise wouldn’t have, or maintained when it would have been dropped before trial. In sum, don’t create a case against yourself by altering the medical records. 

Here, the falsification of records came to light during the deposition of the second nurse—who, being under oath, probably had little choice but to testify that the first nurse falsified the records. No doubt, this falsification made a bad case worse and gave the plaintiff leverage in securing more favorable settlement terms. 

You can’t make it right by rewriting history, but you can make it right by showing concern for the patient in your actions following a problem. You can also make it right by troubleshooting problems in a closed-door, formal peer review conference. Peer review conferences are designed for full and frank communication between clinicians and staff to solve problems, and as such they are protected from plaintiff disclosure.

This is an unfortunate case and a tragic loss of a young woman’s life. As clinicians, we must respect the potential life-ending power of parenteral narcotics. —DML

A 17-year-old girl underwent a routine tonsillectomy without complications at a surgical center. Following the procedure, the patient was returned to the recovery room and administered fentanyl for pain. 

The recovery room nurse assigned to monitor the patient spent 20 minutes treating another patient and then went on break, signing out to a second recovery room nurse. On receiving the signout, the second recovery room nurse discovered that the patient was in respiratory distress and began resuscitation efforts. The patient was resuscitated but died 15 days later.

The plaintiff claimed that the girl was left unmonitored by nurses assigned to the unit and that the monitoring equipment was not used, not set properly, or muted.

During her deposition, the second recovery room nurse admitted under oath that the first recovery room nurse falsified the patient’s chart; the first nurse claimed that she had assessed the patient during an important time period when she had not.  

OUTCOME
The case was settled for $6 million: $1 million against the surgical center’s primary policy and $5 million against its excess policy.

COMMENT
Cases such as this one are unfortunate and avoidable—and tragically, too common. On any medical malpractice lawyer’s desk is a teetering stack of potential cases; much of that stack involves narcotics. This case raises two important areas to discuss: the dangers of parenteral narcotics and the perils of falsifying medical records.

First, when parenteral narcotics are given, proper monitoring safeguards must be in place. Malpractice cases frequently involve a scenario in which patients are given parenteral narcotics and left alone, out of sight, and unmonitored. This simply can’t be done. Close supervision and monitoring—with both equipment and eyes—are required to safeguard your patients and avoid malpractice risk. 

Other malpractice scenarios involve the ambulatory patient who is given parenteral narcotics in a clinic setting and discharged after a 10-minute “observation” period—a period during which peak drug effect is probably not realized. The patient is unsafely discharged before that peak is reached and suffers potentially fatal side effects. Even when direct fatal effects are not realized, the patient is discharged with impaired motor coordination and cognitive judgment, placing the patient at risk in his/her surroundings.

If a clinician commits to giving parenteral narcotics, he or she commits to providing “real-time” monitoring until the narcotic effects have safely diminished and the patient’s condition is thoroughly documented in the record. Generally speaking, the patient must be reasonably clear of the effects of narcotics before discharge. (Remember the special case of naloxone, administered for opiate excesses, in which narcan is metabolized before the opiate; the patient can relapse into a coma/apnea if the naloxone fully metabolizes before the opiate.)

Here, this young woman was probably opiate naïve. While the amount she was given was certain, her response to the drug was not. She was left alone for at least 20 minutes and did not have a functioning SaO₂ monitor. Close monitoring of this patient was required but not provided.

As a result of this case, the surgical center changed several policies: Nurses must be on a one-to-one ratio with patients who have received narcotics during anesthesia. Furthermore, nurses must have line-of-sight to see patients at all times, and importantly, may not mute monitors (eg, oximetry monitors). 

The second salient point of this case is never, ever alter or falsify patient records! It will be discovered, and your credibility will be irretrievably damaged. Plaintiff lawyers live for this, and yet clinicians continue to do it. Don’t.

When altered medical records are discovered, the plaintiff’s theory of the case will be “cover up,” and jurors will be invited to punish the clinician for it. The jurors will do so. 

Also problematic is a case that is otherwise defensible, but which becomes much more difficult to defend because a clinician has altered the records. Remember, the plaintiff must prove all aspects of negligence, including causation and damages. In some cases, the clinician knows an obvious mistake was made, but does not know that the eventual damages may be minimal or attributable to another cause. By altering the medical record, the clinician may enhance the damages value of a case by introducing a punitive element. Altering records may result in a lawsuit being filed when it otherwise wouldn’t have, or maintained when it would have been dropped before trial. In sum, don’t create a case against yourself by altering the medical records. 

Here, the falsification of records came to light during the deposition of the second nurse—who, being under oath, probably had little choice but to testify that the first nurse falsified the records. No doubt, this falsification made a bad case worse and gave the plaintiff leverage in securing more favorable settlement terms. 

You can’t make it right by rewriting history, but you can make it right by showing concern for the patient in your actions following a problem. You can also make it right by troubleshooting problems in a closed-door, formal peer review conference. Peer review conferences are designed for full and frank communication between clinicians and staff to solve problems, and as such they are protected from plaintiff disclosure.

This is an unfortunate case and a tragic loss of a young woman’s life. As clinicians, we must respect the potential life-ending power of parenteral narcotics. —DML

A 17-year-old girl underwent a routine tonsillectomy without complications at a surgical center. Following the procedure, the patient was returned to the recovery room and administered fentanyl for pain. 

The recovery room nurse assigned to monitor the patient spent 20 minutes treating another patient and then went on break, signing out to a second recovery room nurse. On receiving the signout, the second recovery room nurse discovered that the patient was in respiratory distress and began resuscitation efforts. The patient was resuscitated but died 15 days later.

The plaintiff claimed that the girl was left unmonitored by nurses assigned to the unit and that the monitoring equipment was not used, not set properly, or muted.

During her deposition, the second recovery room nurse admitted under oath that the first recovery room nurse falsified the patient’s chart; the first nurse claimed that she had assessed the patient during an important time period when she had not.  

OUTCOME
The case was settled for $6 million: $1 million against the surgical center’s primary policy and $5 million against its excess policy.

COMMENT
Cases such as this one are unfortunate and avoidable—and tragically, too common. On any medical malpractice lawyer’s desk is a teetering stack of potential cases; much of that stack involves narcotics. This case raises two important areas to discuss: the dangers of parenteral narcotics and the perils of falsifying medical records.

First, when parenteral narcotics are given, proper monitoring safeguards must be in place. Malpractice cases frequently involve a scenario in which patients are given parenteral narcotics and left alone, out of sight, and unmonitored. This simply can’t be done. Close supervision and monitoring—with both equipment and eyes—are required to safeguard your patients and avoid malpractice risk. 

Other malpractice scenarios involve the ambulatory patient who is given parenteral narcotics in a clinic setting and discharged after a 10-minute “observation” period—a period during which peak drug effect is probably not realized. The patient is unsafely discharged before that peak is reached and suffers potentially fatal side effects. Even when direct fatal effects are not realized, the patient is discharged with impaired motor coordination and cognitive judgment, placing the patient at risk in his/her surroundings.

If a clinician commits to giving parenteral narcotics, he or she commits to providing “real-time” monitoring until the narcotic effects have safely diminished and the patient’s condition is thoroughly documented in the record. Generally speaking, the patient must be reasonably clear of the effects of narcotics before discharge. (Remember the special case of naloxone, administered for opiate excesses, in which narcan is metabolized before the opiate; the patient can relapse into a coma/apnea if the naloxone fully metabolizes before the opiate.)

Here, this young woman was probably opiate naïve. While the amount she was given was certain, her response to the drug was not. She was left alone for at least 20 minutes and did not have a functioning SaO₂ monitor. Close monitoring of this patient was required but not provided.

As a result of this case, the surgical center changed several policies: Nurses must be on a one-to-one ratio with patients who have received narcotics during anesthesia. Furthermore, nurses must have line-of-sight to see patients at all times, and importantly, may not mute monitors (eg, oximetry monitors). 

The second salient point of this case is never, ever alter or falsify patient records! It will be discovered, and your credibility will be irretrievably damaged. Plaintiff lawyers live for this, and yet clinicians continue to do it. Don’t.

When altered medical records are discovered, the plaintiff’s theory of the case will be “cover up,” and jurors will be invited to punish the clinician for it. The jurors will do so. 

Also problematic is a case that is otherwise defensible, but which becomes much more difficult to defend because a clinician has altered the records. Remember, the plaintiff must prove all aspects of negligence, including causation and damages. In some cases, the clinician knows an obvious mistake was made, but does not know that the eventual damages may be minimal or attributable to another cause. By altering the medical record, the clinician may enhance the damages value of a case by introducing a punitive element. Altering records may result in a lawsuit being filed when it otherwise wouldn’t have, or maintained when it would have been dropped before trial. In sum, don’t create a case against yourself by altering the medical records. 

Here, the falsification of records came to light during the deposition of the second nurse—who, being under oath, probably had little choice but to testify that the first nurse falsified the records. No doubt, this falsification made a bad case worse and gave the plaintiff leverage in securing more favorable settlement terms. 

You can’t make it right by rewriting history, but you can make it right by showing concern for the patient in your actions following a problem. You can also make it right by troubleshooting problems in a closed-door, formal peer review conference. Peer review conferences are designed for full and frank communication between clinicians and staff to solve problems, and as such they are protected from plaintiff disclosure.

This is an unfortunate case and a tragic loss of a young woman’s life. As clinicians, we must respect the potential life-ending power of parenteral narcotics. —DML

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

A 47-year-old man in Michigan went to his internist with complaints of oral discomfort and white patches on his tongue. He was subsequently diagnosed with oral leukoplakia, which is considered precancerous. The patient’s symptoms were treated, but no further follow-up testing was recommended or scheduled.

Subsequently, a second internist evaluated the patient in the emergency department of a major medical center and provided symptomatic treatment without arranging follow-up. The patient was later diagnosed with stage IV oral cancer and required radiation therapy, chemotherapy, and surgery to remove the lesion. In addition, he underwent a second procedure to reconstruct his jaw using bone grafting. 

The plaintiff alleged negligence in the failure to refer him for a biopsy, maintaining that earlier diagnosis and treatment would have prevented the need for extensive surgery and treatment. The defendants claimed that the treatment given was appropriate and that the plaintiff’s drug use, to which he admitted, had caused or contributed to his disease.

Outcome

According to a published account, a $367,500 verdict was returned against the medical center, with 60% comparative negligence being found against the medical center and 40% attributed to the patient. (Explanation follows.)

Comment

Persistent oral lesions require a definitive diagnosis and should be considered cancerous until proven otherwise. Oral cancer can present as an obvious mass but can be as subtle as a mucosal change.¹ Oral leukoplakia is the most common premalignant lesion and is defined by the World Health Organization as “a white patch or plaque that cannot be characterized clinically or pathologically as any other ­disease.”

In the United States, cancers of the oral cavity and oropharynx are the ninth most common cancer.² Approximately 90% of oral cancers are squamous cell carcinoma, occurring most commonly on the tongue, floor of the mouth, and vermilion border of the lower lip. A full 60% of oral carcinomas are advanced by the time they are detected, and about 15% of patients have another cancer in a nearby area, such as the larynx, esophagus, or lungs. Tobacco use and heavy alcohol use are the two main risk factors, accounting for 75% of oral carcinomas.³

When primary care providers casually address oral lesions, there is potential for a missed diagnosis. This potential is greater when a clinician may erroneously believe that a dentist will evaluate the lesion at a routine follow-up—but that follow-up never happens.

Oral care presents an overlap between dentistry and medicine, with both clinicians sharing responsibility but sometimes finding ways of excusing themselves from it. Problematically, dentists and oromaxillofacial surgeons may not be part of the usual referral network for primary care providers. This presents barriers to referring patients and receiving feedback after the evaluation takes place.  

When a decision is made to refer the patient for a suspicious oral lesion, do so formally with a referral to otolaryngology or an oromaxillofacial surgeon. Should the patient wish instead to follow up with his or her dentist, make sure that a specific date is chosen (not “at the next six-month routine visit”). Ensure the referral is part of your formal plan and recorded and documented. Follow up with referral documentation to the dentist, and schedule your own follow-up to be sure the evaluation occurred and the dentist’s feedback is received. Both dentists and primary care clinicians should work together to ensure that a suspicious lesion receives a biopsy.

In this case, a decision to biopsy the lesion may have resulted in the need for less extensive surgery and treatment and a better prognosis. Here, we have a legally interesting situation in which the jury found comparative negligence and reduced the plaintiff’s award based on the jury’s perception that he contributed to his condition (ostensibly because of his drug use).

As clinicians, we are duty-bound to take optimal care of every one of our patients—no matter how we find them. Blaming a patient for a bad outcome can be risky. Even as a defense strategy in a medical malpractice case, alleging plaintiff contribution is tricky: It can backfire badly if the jury is angered by clinician attempts to assign a share of the blame to the patient.

Comparative negligence provides an offset for the patient’s contribution to his situation. Many jurisdictions follow a “50% rule” and bar plaintiff recovery if he/she is deemed half responsible (50%) or more, and others follow a modified “51% rule” in which the plaintiff can recover if he/she was half responsible, but not more (ie, 51% at fault). Thirteen states follow a pure comparative negligence rule that permits recovery if the plaintiff is more than 51% responsible (in theory, even 99%).

This case was tried in Michigan, which follows the modified comparative negligence (“51%”) rule. Here, the jury found the defendant 60% at fault and the plaintiff 40% percent at fault and reduced the award accordingly. Because the jury found the plaintiff less than 51% responsible, he was able to maintain his claim and recover 60% of the damages.

Contributory negligence is an older defense that operates as a complete bar to recovery if the plaintiff contributed to the incident in any way. Only a handful of states still follow strict contributory negligence law.

In summary, take oral lesions seriously. If you encounter a patient with such a lesion, establish a clear plan to refer the patient or to monitor the lesion carefully. A definitive diagnosis is required for any persistent lesion. Explain to the patient that the lesion must be properly evaluated to be sure it is not ­serious. As primary care providers, we are responsible for oral lesions. —DML

References

 1. Gonsalves WC, Chi AC, Neville BW. Common oral lesions: part II—masses and neoplasia. Am Fam Phys. 2007;75(4):509-512.

 2. Jemal A, Murray T, Ward E, et al. Cancer statistics, 2005 [published correction appears in CA Cancer J Clin. 2005;55:259]. CA Cancer J Clin. 2005;55:10-30.

 3. Weinberg MA, Estefan DJ. Assessing oral malignancies. Am Fam Phys. 2002;65:1379-84.

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

A 47-year-old man in Michigan went to his internist with complaints of oral discomfort and white patches on his tongue. He was subsequently diagnosed with oral leukoplakia, which is considered precancerous. The patient’s symptoms were treated, but no further follow-up testing was recommended or scheduled.

Subsequently, a second internist evaluated the patient in the emergency department of a major medical center and provided symptomatic treatment without arranging follow-up. The patient was later diagnosed with stage IV oral cancer and required radiation therapy, chemotherapy, and surgery to remove the lesion. In addition, he underwent a second procedure to reconstruct his jaw using bone grafting. 

The plaintiff alleged negligence in the failure to refer him for a biopsy, maintaining that earlier diagnosis and treatment would have prevented the need for extensive surgery and treatment. The defendants claimed that the treatment given was appropriate and that the plaintiff’s drug use, to which he admitted, had caused or contributed to his disease.

Outcome

According to a published account, a $367,500 verdict was returned against the medical center, with 60% comparative negligence being found against the medical center and 40% attributed to the patient. (Explanation follows.)

Comment

Persistent oral lesions require a definitive diagnosis and should be considered cancerous until proven otherwise. Oral cancer can present as an obvious mass but can be as subtle as a mucosal change.¹ Oral leukoplakia is the most common premalignant lesion and is defined by the World Health Organization as “a white patch or plaque that cannot be characterized clinically or pathologically as any other ­disease.”

In the United States, cancers of the oral cavity and oropharynx are the ninth most common cancer.² Approximately 90% of oral cancers are squamous cell carcinoma, occurring most commonly on the tongue, floor of the mouth, and vermilion border of the lower lip. A full 60% of oral carcinomas are advanced by the time they are detected, and about 15% of patients have another cancer in a nearby area, such as the larynx, esophagus, or lungs. Tobacco use and heavy alcohol use are the two main risk factors, accounting for 75% of oral carcinomas.³

When primary care providers casually address oral lesions, there is potential for a missed diagnosis. This potential is greater when a clinician may erroneously believe that a dentist will evaluate the lesion at a routine follow-up—but that follow-up never happens.

Oral care presents an overlap between dentistry and medicine, with both clinicians sharing responsibility but sometimes finding ways of excusing themselves from it. Problematically, dentists and oromaxillofacial surgeons may not be part of the usual referral network for primary care providers. This presents barriers to referring patients and receiving feedback after the evaluation takes place.  

When a decision is made to refer the patient for a suspicious oral lesion, do so formally with a referral to otolaryngology or an oromaxillofacial surgeon. Should the patient wish instead to follow up with his or her dentist, make sure that a specific date is chosen (not “at the next six-month routine visit”). Ensure the referral is part of your formal plan and recorded and documented. Follow up with referral documentation to the dentist, and schedule your own follow-up to be sure the evaluation occurred and the dentist’s feedback is received. Both dentists and primary care clinicians should work together to ensure that a suspicious lesion receives a biopsy.

In this case, a decision to biopsy the lesion may have resulted in the need for less extensive surgery and treatment and a better prognosis. Here, we have a legally interesting situation in which the jury found comparative negligence and reduced the plaintiff’s award based on the jury’s perception that he contributed to his condition (ostensibly because of his drug use).

As clinicians, we are duty-bound to take optimal care of every one of our patients—no matter how we find them. Blaming a patient for a bad outcome can be risky. Even as a defense strategy in a medical malpractice case, alleging plaintiff contribution is tricky: It can backfire badly if the jury is angered by clinician attempts to assign a share of the blame to the patient.

Comparative negligence provides an offset for the patient’s contribution to his situation. Many jurisdictions follow a “50% rule” and bar plaintiff recovery if he/she is deemed half responsible (50%) or more, and others follow a modified “51% rule” in which the plaintiff can recover if he/she was half responsible, but not more (ie, 51% at fault). Thirteen states follow a pure comparative negligence rule that permits recovery if the plaintiff is more than 51% responsible (in theory, even 99%).

This case was tried in Michigan, which follows the modified comparative negligence (“51%”) rule. Here, the jury found the defendant 60% at fault and the plaintiff 40% percent at fault and reduced the award accordingly. Because the jury found the plaintiff less than 51% responsible, he was able to maintain his claim and recover 60% of the damages.

Contributory negligence is an older defense that operates as a complete bar to recovery if the plaintiff contributed to the incident in any way. Only a handful of states still follow strict contributory negligence law.

In summary, take oral lesions seriously. If you encounter a patient with such a lesion, establish a clear plan to refer the patient or to monitor the lesion carefully. A definitive diagnosis is required for any persistent lesion. Explain to the patient that the lesion must be properly evaluated to be sure it is not ­serious. As primary care providers, we are responsible for oral lesions. —DML

References

 1. Gonsalves WC, Chi AC, Neville BW. Common oral lesions: part II—masses and neoplasia. Am Fam Phys. 2007;75(4):509-512.

 2. Jemal A, Murray T, Ward E, et al. Cancer statistics, 2005 [published correction appears in CA Cancer J Clin. 2005;55:259]. CA Cancer J Clin. 2005;55:10-30.

 3. Weinberg MA, Estefan DJ. Assessing oral malignancies. Am Fam Phys. 2002;65:1379-84.

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

A 47-year-old man in Michigan went to his internist with complaints of oral discomfort and white patches on his tongue. He was subsequently diagnosed with oral leukoplakia, which is considered precancerous. The patient’s symptoms were treated, but no further follow-up testing was recommended or scheduled.

Subsequently, a second internist evaluated the patient in the emergency department of a major medical center and provided symptomatic treatment without arranging follow-up. The patient was later diagnosed with stage IV oral cancer and required radiation therapy, chemotherapy, and surgery to remove the lesion. In addition, he underwent a second procedure to reconstruct his jaw using bone grafting. 

The plaintiff alleged negligence in the failure to refer him for a biopsy, maintaining that earlier diagnosis and treatment would have prevented the need for extensive surgery and treatment. The defendants claimed that the treatment given was appropriate and that the plaintiff’s drug use, to which he admitted, had caused or contributed to his disease.

Outcome

According to a published account, a $367,500 verdict was returned against the medical center, with 60% comparative negligence being found against the medical center and 40% attributed to the patient. (Explanation follows.)

Comment

Persistent oral lesions require a definitive diagnosis and should be considered cancerous until proven otherwise. Oral cancer can present as an obvious mass but can be as subtle as a mucosal change.¹ Oral leukoplakia is the most common premalignant lesion and is defined by the World Health Organization as “a white patch or plaque that cannot be characterized clinically or pathologically as any other ­disease.”

In the United States, cancers of the oral cavity and oropharynx are the ninth most common cancer.² Approximately 90% of oral cancers are squamous cell carcinoma, occurring most commonly on the tongue, floor of the mouth, and vermilion border of the lower lip. A full 60% of oral carcinomas are advanced by the time they are detected, and about 15% of patients have another cancer in a nearby area, such as the larynx, esophagus, or lungs. Tobacco use and heavy alcohol use are the two main risk factors, accounting for 75% of oral carcinomas.³

When primary care providers casually address oral lesions, there is potential for a missed diagnosis. This potential is greater when a clinician may erroneously believe that a dentist will evaluate the lesion at a routine follow-up—but that follow-up never happens.

Oral care presents an overlap between dentistry and medicine, with both clinicians sharing responsibility but sometimes finding ways of excusing themselves from it. Problematically, dentists and oromaxillofacial surgeons may not be part of the usual referral network for primary care providers. This presents barriers to referring patients and receiving feedback after the evaluation takes place.  

When a decision is made to refer the patient for a suspicious oral lesion, do so formally with a referral to otolaryngology or an oromaxillofacial surgeon. Should the patient wish instead to follow up with his or her dentist, make sure that a specific date is chosen (not “at the next six-month routine visit”). Ensure the referral is part of your formal plan and recorded and documented. Follow up with referral documentation to the dentist, and schedule your own follow-up to be sure the evaluation occurred and the dentist’s feedback is received. Both dentists and primary care clinicians should work together to ensure that a suspicious lesion receives a biopsy.

In this case, a decision to biopsy the lesion may have resulted in the need for less extensive surgery and treatment and a better prognosis. Here, we have a legally interesting situation in which the jury found comparative negligence and reduced the plaintiff’s award based on the jury’s perception that he contributed to his condition (ostensibly because of his drug use).

As clinicians, we are duty-bound to take optimal care of every one of our patients—no matter how we find them. Blaming a patient for a bad outcome can be risky. Even as a defense strategy in a medical malpractice case, alleging plaintiff contribution is tricky: It can backfire badly if the jury is angered by clinician attempts to assign a share of the blame to the patient.

Comparative negligence provides an offset for the patient’s contribution to his situation. Many jurisdictions follow a “50% rule” and bar plaintiff recovery if he/she is deemed half responsible (50%) or more, and others follow a modified “51% rule” in which the plaintiff can recover if he/she was half responsible, but not more (ie, 51% at fault). Thirteen states follow a pure comparative negligence rule that permits recovery if the plaintiff is more than 51% responsible (in theory, even 99%).

This case was tried in Michigan, which follows the modified comparative negligence (“51%”) rule. Here, the jury found the defendant 60% at fault and the plaintiff 40% percent at fault and reduced the award accordingly. Because the jury found the plaintiff less than 51% responsible, he was able to maintain his claim and recover 60% of the damages.

Contributory negligence is an older defense that operates as a complete bar to recovery if the plaintiff contributed to the incident in any way. Only a handful of states still follow strict contributory negligence law.

In summary, take oral lesions seriously. If you encounter a patient with such a lesion, establish a clear plan to refer the patient or to monitor the lesion carefully. A definitive diagnosis is required for any persistent lesion. Explain to the patient that the lesion must be properly evaluated to be sure it is not ­serious. As primary care providers, we are responsible for oral lesions. —DML

References

 1. Gonsalves WC, Chi AC, Neville BW. Common oral lesions: part II—masses and neoplasia. Am Fam Phys. 2007;75(4):509-512.

 2. Jemal A, Murray T, Ward E, et al. Cancer statistics, 2005 [published correction appears in CA Cancer J Clin. 2005;55:259]. CA Cancer J Clin. 2005;55:10-30.

 3. Weinberg MA, Estefan DJ. Assessing oral malignancies. Am Fam Phys. 2002;65:1379-84.

A 17-year-old girl with diminished appetite, abdominal pain, and vomiting presented to a pediatrics clinic in New York, where she was examined by a nurse practitioner. She was found to have hematuria as well, and the NP diagnosed viral gastroenteritis.

Eight days later, the patient returned to the clinic with worsening pain. The pediatrician who examined her had her transported to a hospital, where a ruptured appendix was diagnosed. The patient underwent immediate surgery, which included resection of portions of her colon and intestines.

Despite a good recovery, the patient claimed that she suffers residual gastrointestinal dysfunction. She further claimed that the NP should have diagnosed appendicitis during her initial visit, which would have allowed for less invasive treatment.

Initially, the plaintiff brought suit against the clinic and several employees, but not the NP. She later moved to add the NP, but that motion was denied due to the statute of limitations. The clinic then impleaded the NP, arguing that it was her negligence in failing to diagnose the appendicitis.

The matter proceeded to trial against the NP and the clinic. The defendants claimed that the plaintiff’s symptoms did not suggest appendicitis at the time of the NP’s examination.

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

Comment
I used to tell students, “There are only two things in medicine that you need to know well: the common and the dangerous. For everything else, there is time.” I realize now that I sound like that guy from the Dos Equis commercial.

Consider this, however: If we don’t remember the difference between polymyositis and polymyalgia rheumatic, who cares? In such cases, we have time for review—and the patient will be better served by a clinician who has the intellectual curiosity to review conditions that he or she hasn’t seen in a while.

But the diseases that are both common and dangerous require our full proficiency. Basic competence requires us to be well versed in common diseases. And dangerous conditions, even if relatively rare, must be recognized and managed immediately. Entities that are common and dangerous—such as appendicitis—should enter our thoughts often.

In this case, we have a 17-year-old girl presenting to an outpatient clinic setting with abdominal pain, vomiting, and anorexia. Unfortunately, we are not given some important historical information, including duration and location of the pain and the presence or absence of pain migration. Physical exam findings are not described.

The trouble with appendicitis is that there is no single sign or symptom that can effectively diagnose it or exclude it from the differential. When evaluating a patient in a setting in which real-time laboratory testing is not generally ordered, clinicians must distinguish between self-limiting and dangerous abdominal pain. Where does that leave us in this case? Abdominal pain and vomiting are common, and ill patients frequently report anorexia. 

Other clinical features associated with appendicitis may be more helpful. For example, pain migration has been described as “the most discriminating feature of the patient’s history,”¹ with a sensitivity and specificity of approximately 80%.² When present, psoas sign is fairly specific (0.95), but not sensitive (0.16).³

When evaluating patients in an outpatient setting, we have a snapshot of a disease process—a still frame of a movie. We are told what happened up to that point (with varying degrees of accuracy). But like the patient, we don’t know what will happen after the patient leaves the office: The still frame is gone, but the movie continues.

It can be helpful to inform patients of the concerning diagnoses in your differential and alert them to patterns of clinical progression that warrant return or immediate emergency department evaluation. Calling the patient to see how he or she is doing can be very useful for clinicians, and generally highly valued and appreciated by patients. Here, if gastroenteritis were suspected, a phone call after a few hours of antiemetic and rehydration therapy may have been helpful to determine if the patient’s symptoms had improved. This, of course, would not be conclusive—but at least it would give the clinician additional information and the patient additional comfort. 

In this case, the jury was persuaded that the NP provided good treatment and acted within the standard of care. Diagnosing appendicitis can be tricky, even under the best circumstances. The NP’s defense was probably aided by good documentation showing that appendicitis seemed less likely at the time of her evaluation. Ultimately, she performed well enough that her care withstood scrutiny from the plaintiff, the plaintiff’s expert witness, and eventually, her own practice.

This case was interesting from a legal perspective in that the plaintiff originally failed to file suit against the NP—probably resorting to liability under the theory of respondeat superior (generally, employer liability for employee actions). While the plaintiff was unsuccessful in adding the NP later, due to the statue of limitations, the NP was brought into the case by her own practice, through a procedure known as “impleader.” An impleader action is brought by a co-defendant. Under typical impleader rules, the defendant becomes a “third-party plaintiff” and brings suit against a “third-party defendant” (in this case, the practice and the NP, respectively).

In sum, always keep important diagnoses in mind, and document well. Anticipate a changing clinical course, and instruct patients on how to respond to those changes. In certain cases, we are well served to pick up the phone, check on the patient, and make the presentation less of a static picture and more of a dynamic movie. —DML

References
1. Craig S, Brenner BE. Appendicitis (updated October 26, 2012). Medscape Reference. http://emedicine.medscape.com/article/773895-overview. Accessed August 14, 2013.

2. Yeh B. Evidence-based emergency medicine/rational clinical examination abstract: does this adult patient have appendicitis?.Ann Emerg Med. 2008;52(3):301-303.

3. Wagner J, McKinney WP, Carpenter JL. Does this patient have appendicitis? JAMA. 1996;276(19):1589-1594.

A 17-year-old girl with diminished appetite, abdominal pain, and vomiting presented to a pediatrics clinic in New York, where she was examined by a nurse practitioner. She was found to have hematuria as well, and the NP diagnosed viral gastroenteritis.

Eight days later, the patient returned to the clinic with worsening pain. The pediatrician who examined her had her transported to a hospital, where a ruptured appendix was diagnosed. The patient underwent immediate surgery, which included resection of portions of her colon and intestines.

Despite a good recovery, the patient claimed that she suffers residual gastrointestinal dysfunction. She further claimed that the NP should have diagnosed appendicitis during her initial visit, which would have allowed for less invasive treatment.

Initially, the plaintiff brought suit against the clinic and several employees, but not the NP. She later moved to add the NP, but that motion was denied due to the statute of limitations. The clinic then impleaded the NP, arguing that it was her negligence in failing to diagnose the appendicitis.

The matter proceeded to trial against the NP and the clinic. The defendants claimed that the plaintiff’s symptoms did not suggest appendicitis at the time of the NP’s examination.

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

Comment
I used to tell students, “There are only two things in medicine that you need to know well: the common and the dangerous. For everything else, there is time.” I realize now that I sound like that guy from the Dos Equis commercial.

Consider this, however: If we don’t remember the difference between polymyositis and polymyalgia rheumatic, who cares? In such cases, we have time for review—and the patient will be better served by a clinician who has the intellectual curiosity to review conditions that he or she hasn’t seen in a while.

But the diseases that are both common and dangerous require our full proficiency. Basic competence requires us to be well versed in common diseases. And dangerous conditions, even if relatively rare, must be recognized and managed immediately. Entities that are common and dangerous—such as appendicitis—should enter our thoughts often.

In this case, we have a 17-year-old girl presenting to an outpatient clinic setting with abdominal pain, vomiting, and anorexia. Unfortunately, we are not given some important historical information, including duration and location of the pain and the presence or absence of pain migration. Physical exam findings are not described.

The trouble with appendicitis is that there is no single sign or symptom that can effectively diagnose it or exclude it from the differential. When evaluating a patient in a setting in which real-time laboratory testing is not generally ordered, clinicians must distinguish between self-limiting and dangerous abdominal pain. Where does that leave us in this case? Abdominal pain and vomiting are common, and ill patients frequently report anorexia. 

Other clinical features associated with appendicitis may be more helpful. For example, pain migration has been described as “the most discriminating feature of the patient’s history,”¹ with a sensitivity and specificity of approximately 80%.² When present, psoas sign is fairly specific (0.95), but not sensitive (0.16).³

When evaluating patients in an outpatient setting, we have a snapshot of a disease process—a still frame of a movie. We are told what happened up to that point (with varying degrees of accuracy). But like the patient, we don’t know what will happen after the patient leaves the office: The still frame is gone, but the movie continues.

It can be helpful to inform patients of the concerning diagnoses in your differential and alert them to patterns of clinical progression that warrant return or immediate emergency department evaluation. Calling the patient to see how he or she is doing can be very useful for clinicians, and generally highly valued and appreciated by patients. Here, if gastroenteritis were suspected, a phone call after a few hours of antiemetic and rehydration therapy may have been helpful to determine if the patient’s symptoms had improved. This, of course, would not be conclusive—but at least it would give the clinician additional information and the patient additional comfort. 

In this case, the jury was persuaded that the NP provided good treatment and acted within the standard of care. Diagnosing appendicitis can be tricky, even under the best circumstances. The NP’s defense was probably aided by good documentation showing that appendicitis seemed less likely at the time of her evaluation. Ultimately, she performed well enough that her care withstood scrutiny from the plaintiff, the plaintiff’s expert witness, and eventually, her own practice.

This case was interesting from a legal perspective in that the plaintiff originally failed to file suit against the NP—probably resorting to liability under the theory of respondeat superior (generally, employer liability for employee actions). While the plaintiff was unsuccessful in adding the NP later, due to the statue of limitations, the NP was brought into the case by her own practice, through a procedure known as “impleader.” An impleader action is brought by a co-defendant. Under typical impleader rules, the defendant becomes a “third-party plaintiff” and brings suit against a “third-party defendant” (in this case, the practice and the NP, respectively).

In sum, always keep important diagnoses in mind, and document well. Anticipate a changing clinical course, and instruct patients on how to respond to those changes. In certain cases, we are well served to pick up the phone, check on the patient, and make the presentation less of a static picture and more of a dynamic movie. —DML

References
1. Craig S, Brenner BE. Appendicitis (updated October 26, 2012). Medscape Reference. http://emedicine.medscape.com/article/773895-overview. Accessed August 14, 2013.

2. Yeh B. Evidence-based emergency medicine/rational clinical examination abstract: does this adult patient have appendicitis?.Ann Emerg Med. 2008;52(3):301-303.

3. Wagner J, McKinney WP, Carpenter JL. Does this patient have appendicitis? JAMA. 1996;276(19):1589-1594.

A 17-year-old girl with diminished appetite, abdominal pain, and vomiting presented to a pediatrics clinic in New York, where she was examined by a nurse practitioner. She was found to have hematuria as well, and the NP diagnosed viral gastroenteritis.

Eight days later, the patient returned to the clinic with worsening pain. The pediatrician who examined her had her transported to a hospital, where a ruptured appendix was diagnosed. The patient underwent immediate surgery, which included resection of portions of her colon and intestines.

Despite a good recovery, the patient claimed that she suffers residual gastrointestinal dysfunction. She further claimed that the NP should have diagnosed appendicitis during her initial visit, which would have allowed for less invasive treatment.

Initially, the plaintiff brought suit against the clinic and several employees, but not the NP. She later moved to add the NP, but that motion was denied due to the statute of limitations. The clinic then impleaded the NP, arguing that it was her negligence in failing to diagnose the appendicitis.

The matter proceeded to trial against the NP and the clinic. The defendants claimed that the plaintiff’s symptoms did not suggest appendicitis at the time of the NP’s examination.

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

Comment
I used to tell students, “There are only two things in medicine that you need to know well: the common and the dangerous. For everything else, there is time.” I realize now that I sound like that guy from the Dos Equis commercial.

Consider this, however: If we don’t remember the difference between polymyositis and polymyalgia rheumatic, who cares? In such cases, we have time for review—and the patient will be better served by a clinician who has the intellectual curiosity to review conditions that he or she hasn’t seen in a while.

But the diseases that are both common and dangerous require our full proficiency. Basic competence requires us to be well versed in common diseases. And dangerous conditions, even if relatively rare, must be recognized and managed immediately. Entities that are common and dangerous—such as appendicitis—should enter our thoughts often.

In this case, we have a 17-year-old girl presenting to an outpatient clinic setting with abdominal pain, vomiting, and anorexia. Unfortunately, we are not given some important historical information, including duration and location of the pain and the presence or absence of pain migration. Physical exam findings are not described.

The trouble with appendicitis is that there is no single sign or symptom that can effectively diagnose it or exclude it from the differential. When evaluating a patient in a setting in which real-time laboratory testing is not generally ordered, clinicians must distinguish between self-limiting and dangerous abdominal pain. Where does that leave us in this case? Abdominal pain and vomiting are common, and ill patients frequently report anorexia. 

Other clinical features associated with appendicitis may be more helpful. For example, pain migration has been described as “the most discriminating feature of the patient’s history,”¹ with a sensitivity and specificity of approximately 80%.² When present, psoas sign is fairly specific (0.95), but not sensitive (0.16).³

When evaluating patients in an outpatient setting, we have a snapshot of a disease process—a still frame of a movie. We are told what happened up to that point (with varying degrees of accuracy). But like the patient, we don’t know what will happen after the patient leaves the office: The still frame is gone, but the movie continues.

It can be helpful to inform patients of the concerning diagnoses in your differential and alert them to patterns of clinical progression that warrant return or immediate emergency department evaluation. Calling the patient to see how he or she is doing can be very useful for clinicians, and generally highly valued and appreciated by patients. Here, if gastroenteritis were suspected, a phone call after a few hours of antiemetic and rehydration therapy may have been helpful to determine if the patient’s symptoms had improved. This, of course, would not be conclusive—but at least it would give the clinician additional information and the patient additional comfort. 

In this case, the jury was persuaded that the NP provided good treatment and acted within the standard of care. Diagnosing appendicitis can be tricky, even under the best circumstances. The NP’s defense was probably aided by good documentation showing that appendicitis seemed less likely at the time of her evaluation. Ultimately, she performed well enough that her care withstood scrutiny from the plaintiff, the plaintiff’s expert witness, and eventually, her own practice.

This case was interesting from a legal perspective in that the plaintiff originally failed to file suit against the NP—probably resorting to liability under the theory of respondeat superior (generally, employer liability for employee actions). While the plaintiff was unsuccessful in adding the NP later, due to the statue of limitations, the NP was brought into the case by her own practice, through a procedure known as “impleader.” An impleader action is brought by a co-defendant. Under typical impleader rules, the defendant becomes a “third-party plaintiff” and brings suit against a “third-party defendant” (in this case, the practice and the NP, respectively).

In sum, always keep important diagnoses in mind, and document well. Anticipate a changing clinical course, and instruct patients on how to respond to those changes. In certain cases, we are well served to pick up the phone, check on the patient, and make the presentation less of a static picture and more of a dynamic movie. —DML

References
1. Craig S, Brenner BE. Appendicitis (updated October 26, 2012). Medscape Reference. http://emedicine.medscape.com/article/773895-overview. Accessed August 14, 2013.

2. Yeh B. Evidence-based emergency medicine/rational clinical examination abstract: does this adult patient have appendicitis?.Ann Emerg Med. 2008;52(3):301-303.

3. Wagner J, McKinney WP, Carpenter JL. Does this patient have appendicitis? JAMA. 1996;276(19):1589-1594.

A 42-year-old woman underwent a hysterectomy performed by the defendant gynecologist at a New York City medical center. During the patient’s postsurgical hospitalization, she had a persistent fever, and it was noted that her leukocyte count had doubled. The gynecologist made a diagnosis of urinary tract infection (UTI) and prescribed ciprofloxacin. The woman was discharged four days after her surgery.

Four days later, she returned to the gynecologist’s office complaining of severe abdominal pain and vomiting. The gynecologist prescribed antacids and advised her to continue taking ciprofloxacin.

Three days after the office visit, the patient was hospitalized and diagnosed with Clostridium difficile colitis, which had caused colon perforation and subsequent peritonitis. The patient’s condition required a partial resection of the colon and creation of a colostomy, which was reversed six months later. The patient now has abdominal scarring and has developed an incisional hernia.

The plaintiff claimed that her 
C difficile infection developed shortly after her hysterectomy and that the defendant should have diagnosed and treated it, thus avoiding the resulting damage to her colon. The plaintiff claimed that she was given prophylactic antibiotics prior to surgery and that the defendant should have considered that the antibiotics and/or the procedure placed her at risk for C difficile colitis. The plaintiff also contended that ciprofloxacin should not have been prescribed and that its use likely worsened her infection.

The defendant claimed that the plaintiff’s symptoms did not suggest a C difficile infection and that no testing was warranted. The defendant acknowledged that ciprofloxacin may have allowed the proliferation of the plaintiff’s infection but that it was not negligent for him to prescribe the drug. Finally, the defendant claimed that the plaintiff’s infection was not preventable and could not have been diagnosed earlier.

Outcome
According to a published account, a $776,000 verdict was returned.

Comment
Complications arising from the use of antibiotics are well known but occur with relative infrequency. Although clindamycin is known for causing pseudomembranous colitis, virtually any antibiotic may be implicated.

It is possible for pseudomembranous colitis to occur after a single dose, and symptoms can develop several weeks after antibiotics have been stopped. Other lesser-known risk factors for this condition include use of proton pump inhibitors or antineoplastic agents; any condition that slows gut motility; age older than 65; use of enteral tube feeding; chronic debilitation; and critical illness.

In this case, the patient presented with abdominal pain and vomiting (not unusual symptoms following general surgery), but apparently without diarrhea; this complicates the early diagnostic picture for colitis. The symptoms were unfortunate for the patient, but it would have been a difficult diagnosis for the clinician to make.

The jury was likely impressed by testimony describing the patient’s colonic perforation and would have been shocked by the need to perform a colostomy (even though it was reversed six months later). Some jurors automatically equate an unfortunate result with malpractice and will quickly reach that conclusion when presented with a compelling story—skipping the issue of whether the clinician actually made a mistake.

It is the defense attorney’s job to make sure that jurors selected for malpractice cases will actually decide that malpractice exists before concluding negligence and awarding damages. I used to ask potential jurors if they agreed with this statement: “In this day and age, if a patient has a bad outcome, someone probably made a mistake.” A surprising number of potential jurors would answer “Yes,” indicating a predisposition to hold clinicians accountable for a bad outcome, even clinicians who performed well and acted in conformity with the standard of care.

Sometimes all we, as clinicians, can do is show patients the concern and attention they deserve, do our best, and make sure an adequate professional liability policy is in place.  —DML      

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

A 42-year-old woman underwent a hysterectomy performed by the defendant gynecologist at a New York City medical center. During the patient’s postsurgical hospitalization, she had a persistent fever, and it was noted that her leukocyte count had doubled. The gynecologist made a diagnosis of urinary tract infection (UTI) and prescribed ciprofloxacin. The woman was discharged four days after her surgery.

Four days later, she returned to the gynecologist’s office complaining of severe abdominal pain and vomiting. The gynecologist prescribed antacids and advised her to continue taking ciprofloxacin.

Three days after the office visit, the patient was hospitalized and diagnosed with Clostridium difficile colitis, which had caused colon perforation and subsequent peritonitis. The patient’s condition required a partial resection of the colon and creation of a colostomy, which was reversed six months later. The patient now has abdominal scarring and has developed an incisional hernia.

The plaintiff claimed that her 
C difficile infection developed shortly after her hysterectomy and that the defendant should have diagnosed and treated it, thus avoiding the resulting damage to her colon. The plaintiff claimed that she was given prophylactic antibiotics prior to surgery and that the defendant should have considered that the antibiotics and/or the procedure placed her at risk for C difficile colitis. The plaintiff also contended that ciprofloxacin should not have been prescribed and that its use likely worsened her infection.

The defendant claimed that the plaintiff’s symptoms did not suggest a C difficile infection and that no testing was warranted. The defendant acknowledged that ciprofloxacin may have allowed the proliferation of the plaintiff’s infection but that it was not negligent for him to prescribe the drug. Finally, the defendant claimed that the plaintiff’s infection was not preventable and could not have been diagnosed earlier.

Outcome
According to a published account, a $776,000 verdict was returned.

Comment
Complications arising from the use of antibiotics are well known but occur with relative infrequency. Although clindamycin is known for causing pseudomembranous colitis, virtually any antibiotic may be implicated.

It is possible for pseudomembranous colitis to occur after a single dose, and symptoms can develop several weeks after antibiotics have been stopped. Other lesser-known risk factors for this condition include use of proton pump inhibitors or antineoplastic agents; any condition that slows gut motility; age older than 65; use of enteral tube feeding; chronic debilitation; and critical illness.

In this case, the patient presented with abdominal pain and vomiting (not unusual symptoms following general surgery), but apparently without diarrhea; this complicates the early diagnostic picture for colitis. The symptoms were unfortunate for the patient, but it would have been a difficult diagnosis for the clinician to make.

The jury was likely impressed by testimony describing the patient’s colonic perforation and would have been shocked by the need to perform a colostomy (even though it was reversed six months later). Some jurors automatically equate an unfortunate result with malpractice and will quickly reach that conclusion when presented with a compelling story—skipping the issue of whether the clinician actually made a mistake.

It is the defense attorney’s job to make sure that jurors selected for malpractice cases will actually decide that malpractice exists before concluding negligence and awarding damages. I used to ask potential jurors if they agreed with this statement: “In this day and age, if a patient has a bad outcome, someone probably made a mistake.” A surprising number of potential jurors would answer “Yes,” indicating a predisposition to hold clinicians accountable for a bad outcome, even clinicians who performed well and acted in conformity with the standard of care.

Sometimes all we, as clinicians, can do is show patients the concern and attention they deserve, do our best, and make sure an adequate professional liability policy is in place.  —DML      

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

A 42-year-old woman underwent a hysterectomy performed by the defendant gynecologist at a New York City medical center. During the patient’s postsurgical hospitalization, she had a persistent fever, and it was noted that her leukocyte count had doubled. The gynecologist made a diagnosis of urinary tract infection (UTI) and prescribed ciprofloxacin. The woman was discharged four days after her surgery.

Four days later, she returned to the gynecologist’s office complaining of severe abdominal pain and vomiting. The gynecologist prescribed antacids and advised her to continue taking ciprofloxacin.

Three days after the office visit, the patient was hospitalized and diagnosed with Clostridium difficile colitis, which had caused colon perforation and subsequent peritonitis. The patient’s condition required a partial resection of the colon and creation of a colostomy, which was reversed six months later. The patient now has abdominal scarring and has developed an incisional hernia.

The plaintiff claimed that her 
C difficile infection developed shortly after her hysterectomy and that the defendant should have diagnosed and treated it, thus avoiding the resulting damage to her colon. The plaintiff claimed that she was given prophylactic antibiotics prior to surgery and that the defendant should have considered that the antibiotics and/or the procedure placed her at risk for C difficile colitis. The plaintiff also contended that ciprofloxacin should not have been prescribed and that its use likely worsened her infection.

The defendant claimed that the plaintiff’s symptoms did not suggest a C difficile infection and that no testing was warranted. The defendant acknowledged that ciprofloxacin may have allowed the proliferation of the plaintiff’s infection but that it was not negligent for him to prescribe the drug. Finally, the defendant claimed that the plaintiff’s infection was not preventable and could not have been diagnosed earlier.

Outcome
According to a published account, a $776,000 verdict was returned.

Comment
Complications arising from the use of antibiotics are well known but occur with relative infrequency. Although clindamycin is known for causing pseudomembranous colitis, virtually any antibiotic may be implicated.

It is possible for pseudomembranous colitis to occur after a single dose, and symptoms can develop several weeks after antibiotics have been stopped. Other lesser-known risk factors for this condition include use of proton pump inhibitors or antineoplastic agents; any condition that slows gut motility; age older than 65; use of enteral tube feeding; chronic debilitation; and critical illness.

In this case, the patient presented with abdominal pain and vomiting (not unusual symptoms following general surgery), but apparently without diarrhea; this complicates the early diagnostic picture for colitis. The symptoms were unfortunate for the patient, but it would have been a difficult diagnosis for the clinician to make.

The jury was likely impressed by testimony describing the patient’s colonic perforation and would have been shocked by the need to perform a colostomy (even though it was reversed six months later). Some jurors automatically equate an unfortunate result with malpractice and will quickly reach that conclusion when presented with a compelling story—skipping the issue of whether the clinician actually made a mistake.

It is the defense attorney’s job to make sure that jurors selected for malpractice cases will actually decide that malpractice exists before concluding negligence and awarding damages. I used to ask potential jurors if they agreed with this statement: “In this day and age, if a patient has a bad outcome, someone probably made a mistake.” A surprising number of potential jurors would answer “Yes,” indicating a predisposition to hold clinicians accountable for a bad outcome, even clinicians who performed well and acted in conformity with the standard of care.

Sometimes all we, as clinicians, can do is show patients the concern and attention they deserve, do our best, and make sure an adequate professional liability policy is in place.  —DML      

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

Man Returned to Unrestricted Work Too Soon
A 49-year-old New York man sustained a first back injury in 2002 while attempting to lift a bus engine, assisted by co-workers. He had been receiving workers’ compensation benefits for this injury when he sustained a second back injury. Sixteen days before the second injury, the patient had seen the defendant chiropractor, who returned him to unrestricted work despite herniations at L2-3, L4-5, and L5-S1; the patient signed a form acknowledging that he did not require further treatment and that he was able to resume work. After the second injury, the man underwent several months of conservative treatment but maintained that he had residual pain.

The plaintiff filed a medical malpractice claim against the chiropractor after the second injury, alleging failure to provide proper treatment. The plaintiff claimed that he was not, as the defendant had stated, fit to resume work and that the second injury occurred as a result of a typical, foreseeable, work-related task. The plaintiff claimed that the second injury caused aggravation of the preexisting herniation at L5-S1 and that this led to impingement of the thecal sac, resulting in foot drop.

The defendant claimed that the injury was the result of the patient’s own negligence in failing to use proper lifting technique.

Outcome
According to a published report, a $400,000 settlement was reached.

Comment
Treating patients in a workers’ compensation setting can present unique challenges.

We know this patient had herniations at L2-3, L4-5, and L5-S1, but we do not know whether he had recent symptoms before being returned to full duty, whether any functional limitations were evident on examination, or whether he was experiencing new radicular symptoms before the second injury. Many patients have some degree of herniation, which may or may not be symptomatic. Additionally, clinicians often see patients with lumbar disc disease of some type; was it foreseeable that the condition of a patient with established lumbar disc disease would deteriorate in response to continued (even proper-technique) lifting?

For several reasons, this case is worthy of discussion. The workers’ compensation (WC) system was set up to provide an “exclusive remedy” for any workplace injury sustained in the scope of ordinary employment. The employee gives up the right to sue the employer in court in exchange for the guarantee of prompt treatment for injuries and compensation for injuries and lost wages. However, there is a growing list of exceptions that permit an injured worker to seek recovery within the WC system by pursuing a legal case in court for the same injury.

In some states, a medical malpractice case is such an exception. It allows a patient to bring a suit against a clinician for an injury sustained while receiving WC for the same injury.

If you treat patients on WC, you need to consider a few points to avoid trouble. First, remember that you have a legal and ethical duty to the patient. The carrier may refer cases to your practice, but your obligation is to the patient. To be candid, the dynamics of a clinician-patient relationship in WC cases can be different from other patient encounters: Some WC cases are straightforward, while others can have a legalistic, quasi-adversarial feel. Approach the patient with warmth and candor while maintaining your professionalism. Jurors will expect you to provide good communication and high-quality treatment in WC cases.

Second, ask about the patient’s job description and make sure you understand all it entails before setting work limitations. It is reasonable and proper to tailor these limitations to the patient’s injury and to his or her day-to-day tasks. This can’t be done in a vacuum.

For example, a security guard who is in modest pain from a minor burn to the thigh could probably return to unrestricted duty. However, a theater stagehand, whose usual place of work is the top of a ladder 50 feet in the air, should not be returned to unrestricted duty with that same burn. Why? Because the ongoing action of moving up and down a ladder to hang theatrical props is more likely to exacerbate the pain, and the patient, distracted by the initial or worsening pain, could fall.

Further, understanding the patient’s daily duties will help you determine the likelihood that your restrictions may be exceeded—or ignored. If a worker’s job may involve lifting a bus engine, how can he be expected to return to work with a paper stating, “may not lift/carry more than 10 lb”? The injured employee may face resistance from his employer and co-workers if restrictions remove him from much of the day’s workload. It is the employer’s responsibility to find the employee work within the scope of prescribed limitations—and the clinician’s to inform the patient he will not be able to do his regular job for a while. 

Third, when treating a patient in a WC setting who mentions a potentially dangerous activity in her day-to-day job description, it is helpful to ask—with a healthy amount of skepticism—“Well, how are you going to do that?” Even more important, “How are you going to safely do that?” If you and the patient cannot come up with a good answer in the exam room, chances are that none will be found at the workplace, either; the activity in question should be curtailed. Throughout your rigorous examination of the patient’s work duties, use your skeptical voice to probe for unsafe situations and challenge potential workarounds.

Maintain genuine concern for the employee. If you are being pressured to return that employee to unsafe conditions, it is generally helpful to remind the party in question that a prematurely returned patient who deteriorates will become an employee who is out longer and drawing benefits longer. Further, any catastrophic loss related to an on-the-job injury will be borne by the carrier. So, if our stagehand sustains a serious injury after falling from 50 feet up (because she was distracted by the pain from the burn on her thigh), the employer/carrier will be liable for her lifelong treatment. Clearly voice your concern about the potential for the patient’s injury or reinjury and the substantial losses that could result.

Fourth, don’t let anyone influence your judgment inappropriately. This could be the carrier (who wishes to avoid financial liability), the employer (who wishes the employee to return to unrestricted work), your practice (which wishes to keep the carrier reasonably content for continued business), or the patient (who may wish to be excused from work without just cause—or, on the other hand, to return to work prematurely). Protect the patient and base your judgments on the facts. If you encounter any stiff resistance, solicit a colleague’s opinion.

Fifth, know whether other WC benefits have been paid out. If a previous injury has already been exacerbated, as in this case, take special efforts to ensure the patient’s condition does not worsen further.

Sixth, be wary of the impact of your intervention on the patient’s ability to work safely—including medications, and particularly narcotics. Think about it: You put the patient who works as a roofer on hydrocodone for back pain. The employer puts the patient on a roof, gravity puts the patient on the ground, and a lawyer puts you in court. You’ve indicated “no restrictions” for your patient to return to work as a roofer—although the hydrocodone bottle bears a sleepy-eye graphic right above the words “may cause dizziness.” A patient taking narcotics every four to six hours should not return to any job in which the effects of the medication themselves would be disqualifying. This also applies to any white-collar employees who may make suboptimal decisions as a result of taking such a medication. Therefore, view the injury and any potential adverse effects of your chosen therapy in light of the expected job duties. Where the two are incompatible, prohibit that duty.

Lastly, ask about driving: If driving lies within the employee’s scope of duties, it is directly addressable as a restriction. Although the patient with an acute neck strain may be able to sit in a cubicle in front of a monitor, he will not be able to drive a car safely.

Even when driving is not part of an employee’s duties, he still must drive to and from work. WC does not generally cover commuting; however, an employee on narcotics driving in the employer’s parking lot could present a hazard if he hits a co-worker. Therefore, make sure driving safety is thoroughly discussed with the patient and addressed. If driving is unsafe, make sure everyone knows it—even if it means the patient must find an alternative means of transportation to work. —DML      

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

Man Returned to Unrestricted Work Too Soon
A 49-year-old New York man sustained a first back injury in 2002 while attempting to lift a bus engine, assisted by co-workers. He had been receiving workers’ compensation benefits for this injury when he sustained a second back injury. Sixteen days before the second injury, the patient had seen the defendant chiropractor, who returned him to unrestricted work despite herniations at L2-3, L4-5, and L5-S1; the patient signed a form acknowledging that he did not require further treatment and that he was able to resume work. After the second injury, the man underwent several months of conservative treatment but maintained that he had residual pain.

The plaintiff filed a medical malpractice claim against the chiropractor after the second injury, alleging failure to provide proper treatment. The plaintiff claimed that he was not, as the defendant had stated, fit to resume work and that the second injury occurred as a result of a typical, foreseeable, work-related task. The plaintiff claimed that the second injury caused aggravation of the preexisting herniation at L5-S1 and that this led to impingement of the thecal sac, resulting in foot drop.

The defendant claimed that the injury was the result of the patient’s own negligence in failing to use proper lifting technique.

Outcome
According to a published report, a $400,000 settlement was reached.

Comment
Treating patients in a workers’ compensation setting can present unique challenges.

We know this patient had herniations at L2-3, L4-5, and L5-S1, but we do not know whether he had recent symptoms before being returned to full duty, whether any functional limitations were evident on examination, or whether he was experiencing new radicular symptoms before the second injury. Many patients have some degree of herniation, which may or may not be symptomatic. Additionally, clinicians often see patients with lumbar disc disease of some type; was it foreseeable that the condition of a patient with established lumbar disc disease would deteriorate in response to continued (even proper-technique) lifting?

For several reasons, this case is worthy of discussion. The workers’ compensation (WC) system was set up to provide an “exclusive remedy” for any workplace injury sustained in the scope of ordinary employment. The employee gives up the right to sue the employer in court in exchange for the guarantee of prompt treatment for injuries and compensation for injuries and lost wages. However, there is a growing list of exceptions that permit an injured worker to seek recovery within the WC system by pursuing a legal case in court for the same injury.

In some states, a medical malpractice case is such an exception. It allows a patient to bring a suit against a clinician for an injury sustained while receiving WC for the same injury.

If you treat patients on WC, you need to consider a few points to avoid trouble. First, remember that you have a legal and ethical duty to the patient. The carrier may refer cases to your practice, but your obligation is to the patient. To be candid, the dynamics of a clinician-patient relationship in WC cases can be different from other patient encounters: Some WC cases are straightforward, while others can have a legalistic, quasi-adversarial feel. Approach the patient with warmth and candor while maintaining your professionalism. Jurors will expect you to provide good communication and high-quality treatment in WC cases.

Second, ask about the patient’s job description and make sure you understand all it entails before setting work limitations. It is reasonable and proper to tailor these limitations to the patient’s injury and to his or her day-to-day tasks. This can’t be done in a vacuum.

For example, a security guard who is in modest pain from a minor burn to the thigh could probably return to unrestricted duty. However, a theater stagehand, whose usual place of work is the top of a ladder 50 feet in the air, should not be returned to unrestricted duty with that same burn. Why? Because the ongoing action of moving up and down a ladder to hang theatrical props is more likely to exacerbate the pain, and the patient, distracted by the initial or worsening pain, could fall.

Further, understanding the patient’s daily duties will help you determine the likelihood that your restrictions may be exceeded—or ignored. If a worker’s job may involve lifting a bus engine, how can he be expected to return to work with a paper stating, “may not lift/carry more than 10 lb”? The injured employee may face resistance from his employer and co-workers if restrictions remove him from much of the day’s workload. It is the employer’s responsibility to find the employee work within the scope of prescribed limitations—and the clinician’s to inform the patient he will not be able to do his regular job for a while. 

Third, when treating a patient in a WC setting who mentions a potentially dangerous activity in her day-to-day job description, it is helpful to ask—with a healthy amount of skepticism—“Well, how are you going to do that?” Even more important, “How are you going to safely do that?” If you and the patient cannot come up with a good answer in the exam room, chances are that none will be found at the workplace, either; the activity in question should be curtailed. Throughout your rigorous examination of the patient’s work duties, use your skeptical voice to probe for unsafe situations and challenge potential workarounds.

Maintain genuine concern for the employee. If you are being pressured to return that employee to unsafe conditions, it is generally helpful to remind the party in question that a prematurely returned patient who deteriorates will become an employee who is out longer and drawing benefits longer. Further, any catastrophic loss related to an on-the-job injury will be borne by the carrier. So, if our stagehand sustains a serious injury after falling from 50 feet up (because she was distracted by the pain from the burn on her thigh), the employer/carrier will be liable for her lifelong treatment. Clearly voice your concern about the potential for the patient’s injury or reinjury and the substantial losses that could result.

Fourth, don’t let anyone influence your judgment inappropriately. This could be the carrier (who wishes to avoid financial liability), the employer (who wishes the employee to return to unrestricted work), your practice (which wishes to keep the carrier reasonably content for continued business), or the patient (who may wish to be excused from work without just cause—or, on the other hand, to return to work prematurely). Protect the patient and base your judgments on the facts. If you encounter any stiff resistance, solicit a colleague’s opinion.

Fifth, know whether other WC benefits have been paid out. If a previous injury has already been exacerbated, as in this case, take special efforts to ensure the patient’s condition does not worsen further.

Sixth, be wary of the impact of your intervention on the patient’s ability to work safely—including medications, and particularly narcotics. Think about it: You put the patient who works as a roofer on hydrocodone for back pain. The employer puts the patient on a roof, gravity puts the patient on the ground, and a lawyer puts you in court. You’ve indicated “no restrictions” for your patient to return to work as a roofer—although the hydrocodone bottle bears a sleepy-eye graphic right above the words “may cause dizziness.” A patient taking narcotics every four to six hours should not return to any job in which the effects of the medication themselves would be disqualifying. This also applies to any white-collar employees who may make suboptimal decisions as a result of taking such a medication. Therefore, view the injury and any potential adverse effects of your chosen therapy in light of the expected job duties. Where the two are incompatible, prohibit that duty.

Lastly, ask about driving: If driving lies within the employee’s scope of duties, it is directly addressable as a restriction. Although the patient with an acute neck strain may be able to sit in a cubicle in front of a monitor, he will not be able to drive a car safely.

Even when driving is not part of an employee’s duties, he still must drive to and from work. WC does not generally cover commuting; however, an employee on narcotics driving in the employer’s parking lot could present a hazard if he hits a co-worker. Therefore, make sure driving safety is thoroughly discussed with the patient and addressed. If driving is unsafe, make sure everyone knows it—even if it means the patient must find an alternative means of transportation to work. —DML      

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

Man Returned to Unrestricted Work Too Soon
A 49-year-old New York man sustained a first back injury in 2002 while attempting to lift a bus engine, assisted by co-workers. He had been receiving workers’ compensation benefits for this injury when he sustained a second back injury. Sixteen days before the second injury, the patient had seen the defendant chiropractor, who returned him to unrestricted work despite herniations at L2-3, L4-5, and L5-S1; the patient signed a form acknowledging that he did not require further treatment and that he was able to resume work. After the second injury, the man underwent several months of conservative treatment but maintained that he had residual pain.

The plaintiff filed a medical malpractice claim against the chiropractor after the second injury, alleging failure to provide proper treatment. The plaintiff claimed that he was not, as the defendant had stated, fit to resume work and that the second injury occurred as a result of a typical, foreseeable, work-related task. The plaintiff claimed that the second injury caused aggravation of the preexisting herniation at L5-S1 and that this led to impingement of the thecal sac, resulting in foot drop.

The defendant claimed that the injury was the result of the patient’s own negligence in failing to use proper lifting technique.

Outcome
According to a published report, a $400,000 settlement was reached.

Comment
Treating patients in a workers’ compensation setting can present unique challenges.

We know this patient had herniations at L2-3, L4-5, and L5-S1, but we do not know whether he had recent symptoms before being returned to full duty, whether any functional limitations were evident on examination, or whether he was experiencing new radicular symptoms before the second injury. Many patients have some degree of herniation, which may or may not be symptomatic. Additionally, clinicians often see patients with lumbar disc disease of some type; was it foreseeable that the condition of a patient with established lumbar disc disease would deteriorate in response to continued (even proper-technique) lifting?

For several reasons, this case is worthy of discussion. The workers’ compensation (WC) system was set up to provide an “exclusive remedy” for any workplace injury sustained in the scope of ordinary employment. The employee gives up the right to sue the employer in court in exchange for the guarantee of prompt treatment for injuries and compensation for injuries and lost wages. However, there is a growing list of exceptions that permit an injured worker to seek recovery within the WC system by pursuing a legal case in court for the same injury.

In some states, a medical malpractice case is such an exception. It allows a patient to bring a suit against a clinician for an injury sustained while receiving WC for the same injury.

If you treat patients on WC, you need to consider a few points to avoid trouble. First, remember that you have a legal and ethical duty to the patient. The carrier may refer cases to your practice, but your obligation is to the patient. To be candid, the dynamics of a clinician-patient relationship in WC cases can be different from other patient encounters: Some WC cases are straightforward, while others can have a legalistic, quasi-adversarial feel. Approach the patient with warmth and candor while maintaining your professionalism. Jurors will expect you to provide good communication and high-quality treatment in WC cases.

Second, ask about the patient’s job description and make sure you understand all it entails before setting work limitations. It is reasonable and proper to tailor these limitations to the patient’s injury and to his or her day-to-day tasks. This can’t be done in a vacuum.

For example, a security guard who is in modest pain from a minor burn to the thigh could probably return to unrestricted duty. However, a theater stagehand, whose usual place of work is the top of a ladder 50 feet in the air, should not be returned to unrestricted duty with that same burn. Why? Because the ongoing action of moving up and down a ladder to hang theatrical props is more likely to exacerbate the pain, and the patient, distracted by the initial or worsening pain, could fall.

Further, understanding the patient’s daily duties will help you determine the likelihood that your restrictions may be exceeded—or ignored. If a worker’s job may involve lifting a bus engine, how can he be expected to return to work with a paper stating, “may not lift/carry more than 10 lb”? The injured employee may face resistance from his employer and co-workers if restrictions remove him from much of the day’s workload. It is the employer’s responsibility to find the employee work within the scope of prescribed limitations—and the clinician’s to inform the patient he will not be able to do his regular job for a while. 

Third, when treating a patient in a WC setting who mentions a potentially dangerous activity in her day-to-day job description, it is helpful to ask—with a healthy amount of skepticism—“Well, how are you going to do that?” Even more important, “How are you going to safely do that?” If you and the patient cannot come up with a good answer in the exam room, chances are that none will be found at the workplace, either; the activity in question should be curtailed. Throughout your rigorous examination of the patient’s work duties, use your skeptical voice to probe for unsafe situations and challenge potential workarounds.

Maintain genuine concern for the employee. If you are being pressured to return that employee to unsafe conditions, it is generally helpful to remind the party in question that a prematurely returned patient who deteriorates will become an employee who is out longer and drawing benefits longer. Further, any catastrophic loss related to an on-the-job injury will be borne by the carrier. So, if our stagehand sustains a serious injury after falling from 50 feet up (because she was distracted by the pain from the burn on her thigh), the employer/carrier will be liable for her lifelong treatment. Clearly voice your concern about the potential for the patient’s injury or reinjury and the substantial losses that could result.

Fourth, don’t let anyone influence your judgment inappropriately. This could be the carrier (who wishes to avoid financial liability), the employer (who wishes the employee to return to unrestricted work), your practice (which wishes to keep the carrier reasonably content for continued business), or the patient (who may wish to be excused from work without just cause—or, on the other hand, to return to work prematurely). Protect the patient and base your judgments on the facts. If you encounter any stiff resistance, solicit a colleague’s opinion.

Fifth, know whether other WC benefits have been paid out. If a previous injury has already been exacerbated, as in this case, take special efforts to ensure the patient’s condition does not worsen further.

Sixth, be wary of the impact of your intervention on the patient’s ability to work safely—including medications, and particularly narcotics. Think about it: You put the patient who works as a roofer on hydrocodone for back pain. The employer puts the patient on a roof, gravity puts the patient on the ground, and a lawyer puts you in court. You’ve indicated “no restrictions” for your patient to return to work as a roofer—although the hydrocodone bottle bears a sleepy-eye graphic right above the words “may cause dizziness.” A patient taking narcotics every four to six hours should not return to any job in which the effects of the medication themselves would be disqualifying. This also applies to any white-collar employees who may make suboptimal decisions as a result of taking such a medication. Therefore, view the injury and any potential adverse effects of your chosen therapy in light of the expected job duties. Where the two are incompatible, prohibit that duty.

Lastly, ask about driving: If driving lies within the employee’s scope of duties, it is directly addressable as a restriction. Although the patient with an acute neck strain may be able to sit in a cubicle in front of a monitor, he will not be able to drive a car safely.

Even when driving is not part of an employee’s duties, he still must drive to and from work. WC does not generally cover commuting; however, an employee on narcotics driving in the employer’s parking lot could present a hazard if he hits a co-worker. Therefore, make sure driving safety is thoroughly discussed with the patient and addressed. If driving is unsafe, make sure everyone knows it—even if it means the patient must find an alternative means of transportation to work. —DML      

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

A 57-year-old woman fell down stairs, causing injury to her left shoulder. She presented to a New Jersey hospital emergency department, where the emergency physician ordered films and a radiologist interpreted the injury as a simple fracture.

The patient contended she had actually dislocated her shoulder and that because of a delay in treatment, her condition worsened, leaving her unable to use her left hand.

The plaintiff claimed that the radiologist had misread the x-rays and that the emergency physician failed to realize her pain was out of proportion to the diagnosis. The plaintiff claimed that the emergency physician should have ordered more tests and sought a radiological consult. Two nurses were also named as defendants, with the plaintiff maintaining that they had failed to notify the emergency physician when her condition deteriorated.

Outcome
According to a published account, a $2.75 million settlement was reached. The hospital, the emergency physician, and the nurses will pay a total of $1.5 million, and the radiologist, $1.25 million.

Comment
Complex regional pain syndrome(CRPS, formerly known as reflex sympathetic dystrophy) is frequently a source of litigation. Though CRPS is not specifically mentioned in this case synopsis, given the $2.75 million settlement, it seems highly likely that CRPS was claimed as the resulting injury. A relatively minor trauma can lead to CRPS, and why only certain patients subsequently develop the syndrome is a mystery. Yet it is no mystery that CPRS is recognized as one of the most painful conditions known to humankind. Once it develops, the syndrome can result in constant, debilitating pain, the loss of a limb, and near-total decay of a patient’s quality of life.

Plaintiffs’ attorneys are quick to claim negligence and substantial damages for these patients, with their sad, compelling stories. Because the underlying pathophysiology of CPRS is unclear, liability is often hotly debated, with cases difficult to defend.

Malpractice cases generally involve two elements: liability (the presence and magnitude of the error) and damages (the severity of the injury and impact on life). CRPS cases are often considered “damages” cases, because liability may be uncertain, but the patient’s damages are very clear. An understandingly sympathetic jury panel sees the unfortunate patient’s red, swollen, misshapen limb, hears the story of the patient’s ever-present, exquisite pain, and (based largely on human emotion) infers negligence based on the magnitude of the patient’s suffering.

Here, presumptively, the 57-year-old patient sustained a shoulder injury in a fall that was initially treated as a fracture (presumptively proximal) but later determined to be a dislocation. Management of the injury was not described, but we can assume that if a fracture was diagnosed, the shoulder joint was immobilized. The plaintiff did not claim that there were any diminished neurovascular findings at the time of injury. We are not told whether follow-up was arranged for the patient, what the final, full diagnosis was (eg, fracture/anterior dislocation of the proximal humerus), or when/if the shoulder was actively reduced.

Under these circumstances, what could a bedside clinician have done differently? The most prominent element is the report of “pain out of proportion to the diagnosis.” When confronted with pain that seems out of proportion to a limb injury, stop and review the case. Be sure to consider occult or evolving neurovascular injury (eg, compartment syndrome, brachial plexus injury). Seek consultation and a second opinion in cases involving pain that seems intractable and out of proportion.

One quick word about pain and drug-seeking behavior. Many of us are all too familiar with patients who overstate their symptoms to obtain narcotic pain medications. Will you encounter drug seekers who embellish their level of pain to obtain narcotics? You know the answer to that question.

But it is necessary to take an injured patient’s claim of pain as stated. Don’t view yourself as “wrong” or “fooled” if patients misstate their level of pain and you respond accordingly. In many cases, there is no way to differentiate between genuine manifestations of pain and gamesmanship. To attempt to do so is dangerous because it may lead you to dismiss a patient with genuine pain for fear of being “fooled.” Don’t. Few situations will irritate a jury more than a patient with genuine pathology who is wrongly considered a “drug seeker.” Take patients at face value and act appropriately if substance misuse is later discovered.

In this case, recognition of out-of-control pain may have resulted in an orthopedic consultation. At minimum, that would demonstrate that the patient’s pain was taken seriously and the clinicians acted with due concern for her. —DML

Cases reprinted with permission fromMedical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 2998-6288.

A 57-year-old woman fell down stairs, causing injury to her left shoulder. She presented to a New Jersey hospital emergency department, where the emergency physician ordered films and a radiologist interpreted the injury as a simple fracture.

The patient contended she had actually dislocated her shoulder and that because of a delay in treatment, her condition worsened, leaving her unable to use her left hand.

The plaintiff claimed that the radiologist had misread the x-rays and that the emergency physician failed to realize her pain was out of proportion to the diagnosis. The plaintiff claimed that the emergency physician should have ordered more tests and sought a radiological consult. Two nurses were also named as defendants, with the plaintiff maintaining that they had failed to notify the emergency physician when her condition deteriorated.

Outcome
According to a published account, a $2.75 million settlement was reached. The hospital, the emergency physician, and the nurses will pay a total of $1.5 million, and the radiologist, $1.25 million.

Comment
Complex regional pain syndrome(CRPS, formerly known as reflex sympathetic dystrophy) is frequently a source of litigation. Though CRPS is not specifically mentioned in this case synopsis, given the $2.75 million settlement, it seems highly likely that CRPS was claimed as the resulting injury. A relatively minor trauma can lead to CRPS, and why only certain patients subsequently develop the syndrome is a mystery. Yet it is no mystery that CPRS is recognized as one of the most painful conditions known to humankind. Once it develops, the syndrome can result in constant, debilitating pain, the loss of a limb, and near-total decay of a patient’s quality of life.

Plaintiffs’ attorneys are quick to claim negligence and substantial damages for these patients, with their sad, compelling stories. Because the underlying pathophysiology of CPRS is unclear, liability is often hotly debated, with cases difficult to defend.

Malpractice cases generally involve two elements: liability (the presence and magnitude of the error) and damages (the severity of the injury and impact on life). CRPS cases are often considered “damages” cases, because liability may be uncertain, but the patient’s damages are very clear. An understandingly sympathetic jury panel sees the unfortunate patient’s red, swollen, misshapen limb, hears the story of the patient’s ever-present, exquisite pain, and (based largely on human emotion) infers negligence based on the magnitude of the patient’s suffering.

Here, presumptively, the 57-year-old patient sustained a shoulder injury in a fall that was initially treated as a fracture (presumptively proximal) but later determined to be a dislocation. Management of the injury was not described, but we can assume that if a fracture was diagnosed, the shoulder joint was immobilized. The plaintiff did not claim that there were any diminished neurovascular findings at the time of injury. We are not told whether follow-up was arranged for the patient, what the final, full diagnosis was (eg, fracture/anterior dislocation of the proximal humerus), or when/if the shoulder was actively reduced.

Under these circumstances, what could a bedside clinician have done differently? The most prominent element is the report of “pain out of proportion to the diagnosis.” When confronted with pain that seems out of proportion to a limb injury, stop and review the case. Be sure to consider occult or evolving neurovascular injury (eg, compartment syndrome, brachial plexus injury). Seek consultation and a second opinion in cases involving pain that seems intractable and out of proportion.

One quick word about pain and drug-seeking behavior. Many of us are all too familiar with patients who overstate their symptoms to obtain narcotic pain medications. Will you encounter drug seekers who embellish their level of pain to obtain narcotics? You know the answer to that question.

But it is necessary to take an injured patient’s claim of pain as stated. Don’t view yourself as “wrong” or “fooled” if patients misstate their level of pain and you respond accordingly. In many cases, there is no way to differentiate between genuine manifestations of pain and gamesmanship. To attempt to do so is dangerous because it may lead you to dismiss a patient with genuine pain for fear of being “fooled.” Don’t. Few situations will irritate a jury more than a patient with genuine pathology who is wrongly considered a “drug seeker.” Take patients at face value and act appropriately if substance misuse is later discovered.

In this case, recognition of out-of-control pain may have resulted in an orthopedic consultation. At minimum, that would demonstrate that the patient’s pain was taken seriously and the clinicians acted with due concern for her. —DML

Cases reprinted with permission fromMedical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 2998-6288.

A 57-year-old woman fell down stairs, causing injury to her left shoulder. She presented to a New Jersey hospital emergency department, where the emergency physician ordered films and a radiologist interpreted the injury as a simple fracture.

The patient contended she had actually dislocated her shoulder and that because of a delay in treatment, her condition worsened, leaving her unable to use her left hand.

The plaintiff claimed that the radiologist had misread the x-rays and that the emergency physician failed to realize her pain was out of proportion to the diagnosis. The plaintiff claimed that the emergency physician should have ordered more tests and sought a radiological consult. Two nurses were also named as defendants, with the plaintiff maintaining that they had failed to notify the emergency physician when her condition deteriorated.

Outcome
According to a published account, a $2.75 million settlement was reached. The hospital, the emergency physician, and the nurses will pay a total of $1.5 million, and the radiologist, $1.25 million.

Comment
Complex regional pain syndrome(CRPS, formerly known as reflex sympathetic dystrophy) is frequently a source of litigation. Though CRPS is not specifically mentioned in this case synopsis, given the $2.75 million settlement, it seems highly likely that CRPS was claimed as the resulting injury. A relatively minor trauma can lead to CRPS, and why only certain patients subsequently develop the syndrome is a mystery. Yet it is no mystery that CPRS is recognized as one of the most painful conditions known to humankind. Once it develops, the syndrome can result in constant, debilitating pain, the loss of a limb, and near-total decay of a patient’s quality of life.

Plaintiffs’ attorneys are quick to claim negligence and substantial damages for these patients, with their sad, compelling stories. Because the underlying pathophysiology of CPRS is unclear, liability is often hotly debated, with cases difficult to defend.

Malpractice cases generally involve two elements: liability (the presence and magnitude of the error) and damages (the severity of the injury and impact on life). CRPS cases are often considered “damages” cases, because liability may be uncertain, but the patient’s damages are very clear. An understandingly sympathetic jury panel sees the unfortunate patient’s red, swollen, misshapen limb, hears the story of the patient’s ever-present, exquisite pain, and (based largely on human emotion) infers negligence based on the magnitude of the patient’s suffering.

Here, presumptively, the 57-year-old patient sustained a shoulder injury in a fall that was initially treated as a fracture (presumptively proximal) but later determined to be a dislocation. Management of the injury was not described, but we can assume that if a fracture was diagnosed, the shoulder joint was immobilized. The plaintiff did not claim that there were any diminished neurovascular findings at the time of injury. We are not told whether follow-up was arranged for the patient, what the final, full diagnosis was (eg, fracture/anterior dislocation of the proximal humerus), or when/if the shoulder was actively reduced.

Under these circumstances, what could a bedside clinician have done differently? The most prominent element is the report of “pain out of proportion to the diagnosis.” When confronted with pain that seems out of proportion to a limb injury, stop and review the case. Be sure to consider occult or evolving neurovascular injury (eg, compartment syndrome, brachial plexus injury). Seek consultation and a second opinion in cases involving pain that seems intractable and out of proportion.

One quick word about pain and drug-seeking behavior. Many of us are all too familiar with patients who overstate their symptoms to obtain narcotic pain medications. Will you encounter drug seekers who embellish their level of pain to obtain narcotics? You know the answer to that question.

But it is necessary to take an injured patient’s claim of pain as stated. Don’t view yourself as “wrong” or “fooled” if patients misstate their level of pain and you respond accordingly. In many cases, there is no way to differentiate between genuine manifestations of pain and gamesmanship. To attempt to do so is dangerous because it may lead you to dismiss a patient with genuine pain for fear of being “fooled.” Don’t. Few situations will irritate a jury more than a patient with genuine pathology who is wrongly considered a “drug seeker.” Take patients at face value and act appropriately if substance misuse is later discovered.

In this case, recognition of out-of-control pain may have resulted in an orthopedic consultation. At minimum, that would demonstrate that the patient’s pain was taken seriously and the clinicians acted with due concern for her. —DML

Cases reprinted with permission fromMedical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 2998-6288.

A Massachusetts woman, age 37, underwent elective outpatient sinus surgery to address recurrent sinus infections. Shortly after the procedure began, the patient was administered cocaine as an anesthetic, which triggered an expected rise in her blood pressure. The defendant anesthesiologist administered a 10-mg dose of labetalol to treat the blood pressure. The patient was given a second dose only five minutes later.

Another five minutes later, after the patient’s blood pressure had already fallen, the defendant administered a third dose of labetalol. Eighteen minutes passed without documentation of the patient’s vital signs, apparently during a shift change of the nursing staff. After the 18 minutes, the record indicated that the patient’s blood pressure was not obtainable; she was cyanotic and mottled and in cardiac arrest.

Resuscitation was initiated and the patient was defibrillated three times, with a return to normal sinus rhythm after 12 minutes. She was subsequently diagnosed with anoxic encephalopathy, cerebral edema, and hypoxic brain injury. Since the incident, she requires ongoing supervision and care.

The plaintiff alleged that the anesthesiologist failed to monitor the patient. The plaintiff also claimed that normal practice is to wait 10 minutes, not five minutes, before administering a second dose of labetalol, and that a third dose should not have been administered.

Outcome
According to a published account, a $2 million settlement was reached.

Comment
Medical malpractice cases involving anesthesia are common, and anesthesia is considered a “high-risk” practice environment. Given the inherent hazards of managing a patient’s airway, ventilation, and perfusion status, errors can cause rapid deterioration and a poor outcome.

From the layperson juror’s point of view, the utmost care and vigilance are always required when a patient is “under the gas.” Jurors expect careful preoperative screening, direct and attentive intraoperative management, and close postoperative observation.

Here, we do not know how high the patient’s blood pressure rose before labetalol was administered. We do know that no intraoperative vital signs were recorded for 18 minutes. We also know that the plaintiff’s expert witness testified that the patient was improperly administered the second dose of labetalol after five minutes, and a third dose after another five minutes—after the patient’s pressure had already started to drop.

Generally, the anesthesiologist/anesthetist records vital signs; it is probable that the 18-minute gap occurred after the patient’s condition deteriorated, while the anesthesiologist was attempting to correct the patient’s hypotension and was thus distracted from recording vital signs.

In this case, jurors would have little trouble concluding that the standard of care was breached. This case settled before going to trial, likely on the recognition that the missing vital signs records provided a problem for the defense.

It has been said that the practice of anesthesia is “usually terribly simple but sometimes simply terrible”; and that it is defined by “hours of boredom punctuated by moments of sheer terror.” Regardless of how you feel about these characterizations, cases can go bad quickly. Like the airline pilot who must immediately transition from cruising on autopilot to operating in “mayday” mode, anesthesia practitioners must have systems in place to recognize danger and quickly transition from the routine to the emergent. Additionally, anesthesia departments must have a plan in place to assist anesthesia personnel who are in trouble, and issue a “mayday” call—allowing help and resources to be dispatched quickly to the patient’s side. —DML

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

A Massachusetts woman, age 37, underwent elective outpatient sinus surgery to address recurrent sinus infections. Shortly after the procedure began, the patient was administered cocaine as an anesthetic, which triggered an expected rise in her blood pressure. The defendant anesthesiologist administered a 10-mg dose of labetalol to treat the blood pressure. The patient was given a second dose only five minutes later.

Another five minutes later, after the patient’s blood pressure had already fallen, the defendant administered a third dose of labetalol. Eighteen minutes passed without documentation of the patient’s vital signs, apparently during a shift change of the nursing staff. After the 18 minutes, the record indicated that the patient’s blood pressure was not obtainable; she was cyanotic and mottled and in cardiac arrest.

Resuscitation was initiated and the patient was defibrillated three times, with a return to normal sinus rhythm after 12 minutes. She was subsequently diagnosed with anoxic encephalopathy, cerebral edema, and hypoxic brain injury. Since the incident, she requires ongoing supervision and care.

The plaintiff alleged that the anesthesiologist failed to monitor the patient. The plaintiff also claimed that normal practice is to wait 10 minutes, not five minutes, before administering a second dose of labetalol, and that a third dose should not have been administered.

Outcome
According to a published account, a $2 million settlement was reached.

Comment
Medical malpractice cases involving anesthesia are common, and anesthesia is considered a “high-risk” practice environment. Given the inherent hazards of managing a patient’s airway, ventilation, and perfusion status, errors can cause rapid deterioration and a poor outcome.

From the layperson juror’s point of view, the utmost care and vigilance are always required when a patient is “under the gas.” Jurors expect careful preoperative screening, direct and attentive intraoperative management, and close postoperative observation.

Here, we do not know how high the patient’s blood pressure rose before labetalol was administered. We do know that no intraoperative vital signs were recorded for 18 minutes. We also know that the plaintiff’s expert witness testified that the patient was improperly administered the second dose of labetalol after five minutes, and a third dose after another five minutes—after the patient’s pressure had already started to drop.

Generally, the anesthesiologist/anesthetist records vital signs; it is probable that the 18-minute gap occurred after the patient’s condition deteriorated, while the anesthesiologist was attempting to correct the patient’s hypotension and was thus distracted from recording vital signs.

In this case, jurors would have little trouble concluding that the standard of care was breached. This case settled before going to trial, likely on the recognition that the missing vital signs records provided a problem for the defense.

It has been said that the practice of anesthesia is “usually terribly simple but sometimes simply terrible”; and that it is defined by “hours of boredom punctuated by moments of sheer terror.” Regardless of how you feel about these characterizations, cases can go bad quickly. Like the airline pilot who must immediately transition from cruising on autopilot to operating in “mayday” mode, anesthesia practitioners must have systems in place to recognize danger and quickly transition from the routine to the emergent. Additionally, anesthesia departments must have a plan in place to assist anesthesia personnel who are in trouble, and issue a “mayday” call—allowing help and resources to be dispatched quickly to the patient’s side. —DML

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

A Massachusetts woman, age 37, underwent elective outpatient sinus surgery to address recurrent sinus infections. Shortly after the procedure began, the patient was administered cocaine as an anesthetic, which triggered an expected rise in her blood pressure. The defendant anesthesiologist administered a 10-mg dose of labetalol to treat the blood pressure. The patient was given a second dose only five minutes later.

Another five minutes later, after the patient’s blood pressure had already fallen, the defendant administered a third dose of labetalol. Eighteen minutes passed without documentation of the patient’s vital signs, apparently during a shift change of the nursing staff. After the 18 minutes, the record indicated that the patient’s blood pressure was not obtainable; she was cyanotic and mottled and in cardiac arrest.

Resuscitation was initiated and the patient was defibrillated three times, with a return to normal sinus rhythm after 12 minutes. She was subsequently diagnosed with anoxic encephalopathy, cerebral edema, and hypoxic brain injury. Since the incident, she requires ongoing supervision and care.

The plaintiff alleged that the anesthesiologist failed to monitor the patient. The plaintiff also claimed that normal practice is to wait 10 minutes, not five minutes, before administering a second dose of labetalol, and that a third dose should not have been administered.

Outcome
According to a published account, a $2 million settlement was reached.

Comment
Medical malpractice cases involving anesthesia are common, and anesthesia is considered a “high-risk” practice environment. Given the inherent hazards of managing a patient’s airway, ventilation, and perfusion status, errors can cause rapid deterioration and a poor outcome.

From the layperson juror’s point of view, the utmost care and vigilance are always required when a patient is “under the gas.” Jurors expect careful preoperative screening, direct and attentive intraoperative management, and close postoperative observation.

Here, we do not know how high the patient’s blood pressure rose before labetalol was administered. We do know that no intraoperative vital signs were recorded for 18 minutes. We also know that the plaintiff’s expert witness testified that the patient was improperly administered the second dose of labetalol after five minutes, and a third dose after another five minutes—after the patient’s pressure had already started to drop.

Generally, the anesthesiologist/anesthetist records vital signs; it is probable that the 18-minute gap occurred after the patient’s condition deteriorated, while the anesthesiologist was attempting to correct the patient’s hypotension and was thus distracted from recording vital signs.

In this case, jurors would have little trouble concluding that the standard of care was breached. This case settled before going to trial, likely on the recognition that the missing vital signs records provided a problem for the defense.

It has been said that the practice of anesthesia is “usually terribly simple but sometimes simply terrible”; and that it is defined by “hours of boredom punctuated by moments of sheer terror.” Regardless of how you feel about these characterizations, cases can go bad quickly. Like the airline pilot who must immediately transition from cruising on autopilot to operating in “mayday” mode, anesthesia practitioners must have systems in place to recognize danger and quickly transition from the routine to the emergent. Additionally, anesthesia departments must have a plan in place to assist anesthesia personnel who are in trouble, and issue a “mayday” call—allowing help and resources to be dispatched quickly to the patient’s side. —DML

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

In Illinois, a 36-year-old woman underwent a bilateral salpingo-oophorectomy, performed by the defendant gynecologist.

The plaintiff claimed that the defendant removed both of her ovaries although she had consented to the removal of only the left ovary. The plaintiff also claimed that her colon was perforated during the surgery, necessitating multiple subsequent hospitalizations.

Outcome
According to a published report, a $1.2 million verdict was returned against both defendants (the gynecologist and the medical facility where the surgery took place).

Comment

Setting aside the issue of the bowel damage for a moment, it is important to consider the matter of patient consent for medical procedures.

A patient who has not given consent for a procedure can recover for damages under the tort of battery, whether or not harm was suffered—even if the procedure was helpful.

Tortious battery is an offensive contact occurring without a person’s consent. The question of “offensiveness” is decided by an objective “reasonable person standard.” In the classic example, a person bumped by other passengers on a crowded subway cannot recover for battery because a reasonable person expects this type of contact on crowded subways. Yet a person groped on that same subway has a case of battery because a reasonable person does not expect this contact, as it is offensive.

Here, the patient presumably consented to a unilateral, not a bilateral, oophorectomy. In any instance where the patient has given consent for surgery, it is important to not exceed the scope of that consent. However, the extent of surgery will commonly depend on intraoperative findings, with decisions often made on the spot. In such cases, the possibility of the contingent procedure must be addressed in the surgical consent, as well as specific circumstances under which the more extensive procedure will occur.

Bowel perforation is a risk inherent in many intraoperative procedures, both intraluminal and extraluminal. While this risk may be unavoidable, the jury in this case likely concluded that the surgeon was careless with regard to the patient’s wishes and must have been careless in his technique as well.

In sum, make sure the patient fully understands any procedure and has signed a proper consent for that procedure. Risks inherent in a procedure must be discussed fully with the patient and included on the consent form. Lastly, the consent form should address the anticipated scope of the procedure, as well as any conditions that might require the scope to be broadened.

In Illinois, a 36-year-old woman underwent a bilateral salpingo-oophorectomy, performed by the defendant gynecologist.

The plaintiff claimed that the defendant removed both of her ovaries although she had consented to the removal of only the left ovary. The plaintiff also claimed that her colon was perforated during the surgery, necessitating multiple subsequent hospitalizations.

Outcome
According to a published report, a $1.2 million verdict was returned against both defendants (the gynecologist and the medical facility where the surgery took place).

Comment

Setting aside the issue of the bowel damage for a moment, it is important to consider the matter of patient consent for medical procedures.

A patient who has not given consent for a procedure can recover for damages under the tort of battery, whether or not harm was suffered—even if the procedure was helpful.

Tortious battery is an offensive contact occurring without a person’s consent. The question of “offensiveness” is decided by an objective “reasonable person standard.” In the classic example, a person bumped by other passengers on a crowded subway cannot recover for battery because a reasonable person expects this type of contact on crowded subways. Yet a person groped on that same subway has a case of battery because a reasonable person does not expect this contact, as it is offensive.

Here, the patient presumably consented to a unilateral, not a bilateral, oophorectomy. In any instance where the patient has given consent for surgery, it is important to not exceed the scope of that consent. However, the extent of surgery will commonly depend on intraoperative findings, with decisions often made on the spot. In such cases, the possibility of the contingent procedure must be addressed in the surgical consent, as well as specific circumstances under which the more extensive procedure will occur.

Bowel perforation is a risk inherent in many intraoperative procedures, both intraluminal and extraluminal. While this risk may be unavoidable, the jury in this case likely concluded that the surgeon was careless with regard to the patient’s wishes and must have been careless in his technique as well.

In sum, make sure the patient fully understands any procedure and has signed a proper consent for that procedure. Risks inherent in a procedure must be discussed fully with the patient and included on the consent form. Lastly, the consent form should address the anticipated scope of the procedure, as well as any conditions that might require the scope to be broadened.

In Illinois, a 36-year-old woman underwent a bilateral salpingo-oophorectomy, performed by the defendant gynecologist.

The plaintiff claimed that the defendant removed both of her ovaries although she had consented to the removal of only the left ovary. The plaintiff also claimed that her colon was perforated during the surgery, necessitating multiple subsequent hospitalizations.

Outcome
According to a published report, a $1.2 million verdict was returned against both defendants (the gynecologist and the medical facility where the surgery took place).

Comment

Setting aside the issue of the bowel damage for a moment, it is important to consider the matter of patient consent for medical procedures.

A patient who has not given consent for a procedure can recover for damages under the tort of battery, whether or not harm was suffered—even if the procedure was helpful.

Tortious battery is an offensive contact occurring without a person’s consent. The question of “offensiveness” is decided by an objective “reasonable person standard.” In the classic example, a person bumped by other passengers on a crowded subway cannot recover for battery because a reasonable person expects this type of contact on crowded subways. Yet a person groped on that same subway has a case of battery because a reasonable person does not expect this contact, as it is offensive.

Here, the patient presumably consented to a unilateral, not a bilateral, oophorectomy. In any instance where the patient has given consent for surgery, it is important to not exceed the scope of that consent. However, the extent of surgery will commonly depend on intraoperative findings, with decisions often made on the spot. In such cases, the possibility of the contingent procedure must be addressed in the surgical consent, as well as specific circumstances under which the more extensive procedure will occur.

Bowel perforation is a risk inherent in many intraoperative procedures, both intraluminal and extraluminal. While this risk may be unavoidable, the jury in this case likely concluded that the surgeon was careless with regard to the patient’s wishes and must have been careless in his technique as well.

In sum, make sure the patient fully understands any procedure and has signed a proper consent for that procedure. Risks inherent in a procedure must be discussed fully with the patient and included on the consent form. Lastly, the consent form should address the anticipated scope of the procedure, as well as any conditions that might require the scope to be broadened.