Malpractice
Hospices have their share of malpractice litigation, and judgments may be substantial because of noneconomic losses such as pain and suffering, not to mention punitive damages.
For example, in 2013a Maryland jury awarded more than $950,000 to a family that alleged that the decedent’s death was caused by the excessive use of morphine and oxycodone in treating her infected ulcers. Such treatment was deemed suitable for a hospice-type situation, but in fact, the patient was not expected to die within 6 months.
Her husband and two children argued successfully that the hospital committed malpractice by misdiagnosing her need for hospice care and by performing unnecessary surgery. The bulk of the judgment was for pain and suffering and other noneconomic damages.
In another negligence suit, a 66-year-old woman died in a hospice after receiving an overdose of Dilaudid for pancreatic cancer, which an autopsy revealed she did not have. In that case, the plaintiffs were awarded $4.5 million in a wrongful death lawsuit filed against Hospice Ministries and its medical director. The jury awarded the family $4 million in monetary compensation and $500,000 in punitive damages.
The case of McGregor v. Hospice Care of Louisiana is illustrative of a malpractice action with a focus on expert testimony.6 The issue in this case was whether the testimony of the plaintiffs’ expert, Bruce Samuels, MD, was admissible and whether it correctly addressed the requisite standard of care.
The decedent had terminal metastatic prostate cancer and was under the care of an oncologist. He eventually enrolled as a patient of Hospice of Baton Rouge, whose nurses visited him in his home several times a week. They reported their findings to the attending oncologist, who prescribed a total of 40 morphine suppositories to be administered 1-2 per hour as needed for pain. However, the prescription noted that only half – that is, 20 suppositories – were to be filled, and stipulated when the remaining 20 suppositories could be released.
Believing that his father was in pain, the patient’s son demanded the early release of the remaining 20 morphine suppositories; he also refused to allow the nurse to assess the patient and exhibited threatening behavior toward her. After conferring with the oncologist on call, the hospice discharged the patient from its care. An ambulance later took the patient to a hospital, where he died that evening.
The family filed a lawsuit against the hospice, alleging negligence in failing to release the remaining 20 morphine suppositories and in abandoning the patient by discharging him. At trial, the jury rendered a verdict in favor of the hospice, after the court excluded the testimony of the plaintiffs’ expert as being outside his expertise. However, the Louisiana Supreme Court found that the trial court erred in excluding his testimony.
On remand, the appellate court affirmed the trial court’s judgment that the plaintiffs had failed to meet the burden of proof showing negligence. It found that the expert, Dr. Samuels, admitted he had never written a partial-fill prescription before and that he did not know who had the authority to authorize the pharmacist to release the remainder of the partial fill prescription in this case.
In addition, Dr. Samuels acknowledged that a nurse has the obligation to assess a patient and report her findings to the physician and follow any orders of the physician. Further, the nurse indicated that the doctor had instructed her to discharge the patient, not from the doctor’s care, but for treatment to be continued at the hospital.
Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the materials have been taken from earlier columns in Internal Medicine News. For additional information, readers may contact the author at siang@hawaii.edu.
References
1. “Medicare’s most indefensible fraud hotspot: Hospice care.” CNBC, Modern Medicine, Aug. 3, 2018.
2. 31 U.S. Code, Section 3729(a)(1)(A).
3. Tan SY. “Update on the False Claims Act.” Internal Medicine News, April 5, 2017.
4. U.S. Department of Justice, Office of Public Affairs, Oct. 30, 2017.
5. U.S. ex rel. Paradies et al. v. AseraCare Inc. et al., case number 2:12-CV-245-KOB, in the U.S. District Court for the Northern District of Alabama, March 31, 2016.
6. McGregor v. Hospice Care of Louisiana in Baton Rouge, LLC, No. 2013 CA 1979R, consolidated with No. 2013 CA 1980R. Court of Appeals of Louisiana, First Circuit, judgment rendered Sept. 21, 2015.