Medicolegal Issues

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

From 1994 to 2005, a Florida woman, age 40, was a patient of the defendant primary care physician. In 2000, she began to experience rectal bleeding, of which she claimed to have advised her doctor over the years. The physician denied that the patient ever complained of rectal bleeding before June 2005, and whether she had mentioned the problem while in his care was hotly contested.

A rectal exam was performed in October 2000, at which time the patient was noted to have hemorrhoids. However, hematology and stool hematests were negative. The physician maintained that the hemorrhoids remained stable.

The physician did not refer the woman to a gastroenterologist for evaluation until June 2005, when a complaint of rectal bleeding was first documented. In July 2005, the woman was diagnosed with rectal cancer and required removal of the right lobe of the liver due to its spread.

Outcome
According to published reports, a $9,728,835.15 verdict was returned. Posttrial motions were pending.

Comment
After a poor outcome, patients may have a skewed view of how, when, and to whom they have made complaints. Motivated by fear, or a desire to maintain a fully functional status, patients may hide symptoms from their clinician, only to later recollect that such symptoms were communicated, when in fact they were not.  

Legal cases involving an “unspoken complaint” often turn on the perceived credibility of the witnesses and little else. Two strategies may prove useful to minimize the risk of the uncommunicated complaint.

First, it is helpful for a practice to have multiple layers to record and capture patient complaints. Having the patient record the reason for her visit, in writing, in her own words, can improve documentation and care. On occasion, a patient’s written self-complaint can be useful to catch a symptom that may slip by during history taking. Further, medical assistants, nursing staff, and other professionals should also record patient complaints directly—habitually using quotation marks to capture the patient’s actual language where possible and appropriate. Lastly, the clinician should make a practice of first seeking the history independently, only using the patient self-report and nursing assessment to make sure all symptoms and signs have been addressed. This three-tiered system will provide a solid record for what was communicated and make clear the symptoms that were described.

But what about those complaints not communicated? A patient’s record may be “closed” through a technique known as “exhaustion.” Here, clinicians can borrow a page from attorneys: During deposition, attorneys are trained to “exhaust” all possible avenues of evidence for each possible area of questioning. The questioner will conclude by confirming for the record that the deponent has “exhausted” his memory and cannot provide any additional detail.

Clinicians, after receiving the history of present illness (HPI) and recording all pertinent positives and negatives, can “exhaust” the history by asking: “Apart from what you have already told me, do you have any other symptoms? Is anything else bothering you at all?” While clinicians often ask such a question, the response is frequently not recorded. The patient’s negative answer may be documented with language akin to: “Patient denies any additional symptoms or complaints.” Ending the history portion of the clinical note this way closes the record to additional complaints. A clinician is then well positioned to testify that it is his practice to end history taking in a manner calculated to “catch everything” and has documentation to support that claim.

Plaintiff’s counsel, reviewing records and contemplating suit, will find layer upon layer of harmonious documentation, from several professionals. This is far more defensible than a simple set of vital signs with a single brief HPI that, years later, may be cryptic at best. —DML

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

From 1994 to 2005, a Florida woman, age 40, was a patient of the defendant primary care physician. In 2000, she began to experience rectal bleeding, of which she claimed to have advised her doctor over the years. The physician denied that the patient ever complained of rectal bleeding before June 2005, and whether she had mentioned the problem while in his care was hotly contested.

A rectal exam was performed in October 2000, at which time the patient was noted to have hemorrhoids. However, hematology and stool hematests were negative. The physician maintained that the hemorrhoids remained stable.

The physician did not refer the woman to a gastroenterologist for evaluation until June 2005, when a complaint of rectal bleeding was first documented. In July 2005, the woman was diagnosed with rectal cancer and required removal of the right lobe of the liver due to its spread.

Outcome
According to published reports, a $9,728,835.15 verdict was returned. Posttrial motions were pending.

Comment
After a poor outcome, patients may have a skewed view of how, when, and to whom they have made complaints. Motivated by fear, or a desire to maintain a fully functional status, patients may hide symptoms from their clinician, only to later recollect that such symptoms were communicated, when in fact they were not.  

Legal cases involving an “unspoken complaint” often turn on the perceived credibility of the witnesses and little else. Two strategies may prove useful to minimize the risk of the uncommunicated complaint.

First, it is helpful for a practice to have multiple layers to record and capture patient complaints. Having the patient record the reason for her visit, in writing, in her own words, can improve documentation and care. On occasion, a patient’s written self-complaint can be useful to catch a symptom that may slip by during history taking. Further, medical assistants, nursing staff, and other professionals should also record patient complaints directly—habitually using quotation marks to capture the patient’s actual language where possible and appropriate. Lastly, the clinician should make a practice of first seeking the history independently, only using the patient self-report and nursing assessment to make sure all symptoms and signs have been addressed. This three-tiered system will provide a solid record for what was communicated and make clear the symptoms that were described.

But what about those complaints not communicated? A patient’s record may be “closed” through a technique known as “exhaustion.” Here, clinicians can borrow a page from attorneys: During deposition, attorneys are trained to “exhaust” all possible avenues of evidence for each possible area of questioning. The questioner will conclude by confirming for the record that the deponent has “exhausted” his memory and cannot provide any additional detail.

Clinicians, after receiving the history of present illness (HPI) and recording all pertinent positives and negatives, can “exhaust” the history by asking: “Apart from what you have already told me, do you have any other symptoms? Is anything else bothering you at all?” While clinicians often ask such a question, the response is frequently not recorded. The patient’s negative answer may be documented with language akin to: “Patient denies any additional symptoms or complaints.” Ending the history portion of the clinical note this way closes the record to additional complaints. A clinician is then well positioned to testify that it is his practice to end history taking in a manner calculated to “catch everything” and has documentation to support that claim.

Plaintiff’s counsel, reviewing records and contemplating suit, will find layer upon layer of harmonious documentation, from several professionals. This is far more defensible than a simple set of vital signs with a single brief HPI that, years later, may be cryptic at best. —DML

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

From 1994 to 2005, a Florida woman, age 40, was a patient of the defendant primary care physician. In 2000, she began to experience rectal bleeding, of which she claimed to have advised her doctor over the years. The physician denied that the patient ever complained of rectal bleeding before June 2005, and whether she had mentioned the problem while in his care was hotly contested.

A rectal exam was performed in October 2000, at which time the patient was noted to have hemorrhoids. However, hematology and stool hematests were negative. The physician maintained that the hemorrhoids remained stable.

The physician did not refer the woman to a gastroenterologist for evaluation until June 2005, when a complaint of rectal bleeding was first documented. In July 2005, the woman was diagnosed with rectal cancer and required removal of the right lobe of the liver due to its spread.

Outcome
According to published reports, a $9,728,835.15 verdict was returned. Posttrial motions were pending.

Comment
After a poor outcome, patients may have a skewed view of how, when, and to whom they have made complaints. Motivated by fear, or a desire to maintain a fully functional status, patients may hide symptoms from their clinician, only to later recollect that such symptoms were communicated, when in fact they were not.  

Legal cases involving an “unspoken complaint” often turn on the perceived credibility of the witnesses and little else. Two strategies may prove useful to minimize the risk of the uncommunicated complaint.

First, it is helpful for a practice to have multiple layers to record and capture patient complaints. Having the patient record the reason for her visit, in writing, in her own words, can improve documentation and care. On occasion, a patient’s written self-complaint can be useful to catch a symptom that may slip by during history taking. Further, medical assistants, nursing staff, and other professionals should also record patient complaints directly—habitually using quotation marks to capture the patient’s actual language where possible and appropriate. Lastly, the clinician should make a practice of first seeking the history independently, only using the patient self-report and nursing assessment to make sure all symptoms and signs have been addressed. This three-tiered system will provide a solid record for what was communicated and make clear the symptoms that were described.

But what about those complaints not communicated? A patient’s record may be “closed” through a technique known as “exhaustion.” Here, clinicians can borrow a page from attorneys: During deposition, attorneys are trained to “exhaust” all possible avenues of evidence for each possible area of questioning. The questioner will conclude by confirming for the record that the deponent has “exhausted” his memory and cannot provide any additional detail.

Clinicians, after receiving the history of present illness (HPI) and recording all pertinent positives and negatives, can “exhaust” the history by asking: “Apart from what you have already told me, do you have any other symptoms? Is anything else bothering you at all?” While clinicians often ask such a question, the response is frequently not recorded. The patient’s negative answer may be documented with language akin to: “Patient denies any additional symptoms or complaints.” Ending the history portion of the clinical note this way closes the record to additional complaints. A clinician is then well positioned to testify that it is his practice to end history taking in a manner calculated to “catch everything” and has documentation to support that claim.

Plaintiff’s counsel, reviewing records and contemplating suit, will find layer upon layer of harmonious documentation, from several professionals. This is far more defensible than a simple set of vital signs with a single brief HPI that, years later, may be cryptic at best. —DML

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

In January 2006, a 15-year-old Georgia girl presented to a clinic for recommended follow-up. She had been seen in an emergency department (ED) two days earlier for nausea, abdominal pain, and vomiting. At her clinic visit, the patient was seen by an NP, Ms. M., who practiced under the supervision of Dr. P.

Ms. M., after being informed about the girl’s ED visit, wrote prescriptions for antinausea medication and fluoxetine, using a prescription pad with pages that had been pre-signed by Dr. P. According to Ms. M.’s notes, the fluoxetine was prescribed for depression. The patient was told to return in one month.

Three weeks later, the girl hanged herself with a belt. She was found by her mother and brother and transported to the hospital. The patient suffered a catastrophic brain injury and required around-the-clock care until her death three years later.

The plaintiff claimed that fluoxetine should not have been prescribed because the decedent had no signs of clinical depression. The plaintiff also noted that the FDA had issued a warning specifying that fluoxetine use in adolescents increases the risk for suicidal thinking and behavior.

The defendant claimed that the NP’s clinical evaluation for depression supported that diagnosis. The defendant also claimed that the girl’s suicide attempt followed a breakup with her boyfriend and an argument with her father, and that use of the medication played no part in her suicide attempt.

Outcome
In a bench verdict, the plaintiff was awarded $3,459,892.

Comment
When an NP prescribes a medication despite a black-box warning and the warned event occurs, the defense has little hope; when the medication is written on a pre-signed script, there is no hope for the defense attorney. I have warned NPs and PAs never to use pre-signed scripts. It is simply illegal. If an NP does not have prescribing privileges because she practices in a state without such authority, then every script must be signed at the time written by the collaborating physician. 

In this case, the NP may have been correct in her diagnosis, but under the circumstances, referring the patient to a specialist or at least having the collaborating physician weigh in on the decision was certainly in order.

I can’t help but notice that the physician was not a part of this action. —JP

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

In January 2006, a 15-year-old Georgia girl presented to a clinic for recommended follow-up. She had been seen in an emergency department (ED) two days earlier for nausea, abdominal pain, and vomiting. At her clinic visit, the patient was seen by an NP, Ms. M., who practiced under the supervision of Dr. P.

Ms. M., after being informed about the girl’s ED visit, wrote prescriptions for antinausea medication and fluoxetine, using a prescription pad with pages that had been pre-signed by Dr. P. According to Ms. M.’s notes, the fluoxetine was prescribed for depression. The patient was told to return in one month.

Three weeks later, the girl hanged herself with a belt. She was found by her mother and brother and transported to the hospital. The patient suffered a catastrophic brain injury and required around-the-clock care until her death three years later.

The plaintiff claimed that fluoxetine should not have been prescribed because the decedent had no signs of clinical depression. The plaintiff also noted that the FDA had issued a warning specifying that fluoxetine use in adolescents increases the risk for suicidal thinking and behavior.

The defendant claimed that the NP’s clinical evaluation for depression supported that diagnosis. The defendant also claimed that the girl’s suicide attempt followed a breakup with her boyfriend and an argument with her father, and that use of the medication played no part in her suicide attempt.

Outcome
In a bench verdict, the plaintiff was awarded $3,459,892.

Comment
When an NP prescribes a medication despite a black-box warning and the warned event occurs, the defense has little hope; when the medication is written on a pre-signed script, there is no hope for the defense attorney. I have warned NPs and PAs never to use pre-signed scripts. It is simply illegal. If an NP does not have prescribing privileges because she practices in a state without such authority, then every script must be signed at the time written by the collaborating physician. 

In this case, the NP may have been correct in her diagnosis, but under the circumstances, referring the patient to a specialist or at least having the collaborating physician weigh in on the decision was certainly in order.

I can’t help but notice that the physician was not a part of this action. —JP

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

In January 2006, a 15-year-old Georgia girl presented to a clinic for recommended follow-up. She had been seen in an emergency department (ED) two days earlier for nausea, abdominal pain, and vomiting. At her clinic visit, the patient was seen by an NP, Ms. M., who practiced under the supervision of Dr. P.

Ms. M., after being informed about the girl’s ED visit, wrote prescriptions for antinausea medication and fluoxetine, using a prescription pad with pages that had been pre-signed by Dr. P. According to Ms. M.’s notes, the fluoxetine was prescribed for depression. The patient was told to return in one month.

Three weeks later, the girl hanged herself with a belt. She was found by her mother and brother and transported to the hospital. The patient suffered a catastrophic brain injury and required around-the-clock care until her death three years later.

The plaintiff claimed that fluoxetine should not have been prescribed because the decedent had no signs of clinical depression. The plaintiff also noted that the FDA had issued a warning specifying that fluoxetine use in adolescents increases the risk for suicidal thinking and behavior.

The defendant claimed that the NP’s clinical evaluation for depression supported that diagnosis. The defendant also claimed that the girl’s suicide attempt followed a breakup with her boyfriend and an argument with her father, and that use of the medication played no part in her suicide attempt.

Outcome
In a bench verdict, the plaintiff was awarded $3,459,892.

Comment
When an NP prescribes a medication despite a black-box warning and the warned event occurs, the defense has little hope; when the medication is written on a pre-signed script, there is no hope for the defense attorney. I have warned NPs and PAs never to use pre-signed scripts. It is simply illegal. If an NP does not have prescribing privileges because she practices in a state without such authority, then every script must be signed at the time written by the collaborating physician. 

In this case, the NP may have been correct in her diagnosis, but under the circumstances, referring the patient to a specialist or at least having the collaborating physician weigh in on the decision was certainly in order.

I can’t help but notice that the physician was not a part of this action. —JP

Pelvic injury from the McRoberts maneuver?

DURING PRENATAL CARE, a woman repeatedly complained of severe discomfort, and requested a cesarean delivery. The ObGyn’s charts did not note her complaints.

A first-year resident and nurse covered for the ObGyn because he did not arrive at the hospital for hours after the mother notified him she was in labor. When shoulder dystocia was encountered, the resident used the McRoberts maneuver. The ObGyn arrived a minute before the birth. The baby weighed 10 lbs. The mother suffered symphysis pubis diastasis, required several surgeries, and now uses a cane to walk.

PATIENT’S CLAIM The ObGyn was negligent in not arriving in time to deliver the baby. The mother’s pelvis was injured during the McRoberts maneuver. The baby’s size was not properly estimated.

PHYSICIAN’S DEFENSE The use of the resident’s care was appropriate, as this was a teaching hospital.

VERDICT A $5.5 million New York verdict was returned.

Cancer Dx “not timely”; additional tx required

IN JUNE 2000, AN OBGYN PALPATED a pelvic mass in a postmenopausal woman. After ultrasonography (US) in August 2000, the ObGyn told the woman that a uterine fibroid had been found but no further testing was needed. In December 2001, US revealed that the mass had enlarged, but no further testing was done. In May 2002, the patient reported fatigue, distention of her abdomen, and an increase in the frequency of urination.

In July 2002, the ObGyn removed a 3-lb malignant uterine tumor during hysterectomy. A second staging surgery was performed, and the patient underwent chemotherapy.

PATIENT’S CLAIM An earlier diagnosis would have reduced the amount of treatment required. The ObGyn should have reacted immediately when the mass was first palpated in June 2000 and found on US in August 2000, as postmenopausal women do not develop uterine fibroids. A gynecologic oncologist should have been present at the hysterectomy to perform concurrent staging.

PHYSICIAN’S DEFENSE The patient failed to report symptoms that suggested cancer for 10 months; a prompt response was made when symptoms were revealed. It was appropriate to accept the results of US regarding a uterine fibroid.

VERDICT A $1.25 million New York verdict was returned.

Abnormal thickness of fetal nuchal fold

WHEN A 31-YEAR-OLD WOMAN was 18 weeks’ pregnant, she underwent ultrasonography, which was reportedly normal. The child was born with Down syndrome.

PATIENT’S CLAIM The ObGyn and radiologist failed to detect an abnormal thickness in the fetal nuchal fold—often a sign of Down syndrome.

PHYSICIANS’ DEFENSE The sonogram was properly analyzed. A thickened fold is an unreliable indicator of Down syndrome.

VERDICT A $1.7 million New Jersey settlement was returned.

Ovary retained; cancer recurs; death

A WOMAN UNDERWENT SURGERY for ovarian cancer in July 2004. She died of ovarian cancer in 2008 at age 59.

ESTATE’S CLAIM The gynecologist did not tell the patient that only one ovary was removed, or that a pathologist had not found the second ovary in the specimen. Ovarian cancer developed in the retained ovary a few years later. She would have undergone additional surgery had she known the second ovary was still there.

PHYSICIAN’S DEFENSE Both ovaries were removed in July 2004. The left ovary was not found during an autopsy performed on the decedent.

VERDICT A $1.967 million Pennsylvania verdict was returned.

These cases were selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska (www.verdictslaska.com). The information available to the editors about the cases presented here is sometimes incomplete. Moreover, the cases may or may not have merit. Nevertheless, these cases represent the types of clinical situations that typically result in litigation and are meant to illustrate nationwide variation in jury verdicts and awards.

Pelvic injury from the McRoberts maneuver?

DURING PRENATAL CARE, a woman repeatedly complained of severe discomfort, and requested a cesarean delivery. The ObGyn’s charts did not note her complaints.

A first-year resident and nurse covered for the ObGyn because he did not arrive at the hospital for hours after the mother notified him she was in labor. When shoulder dystocia was encountered, the resident used the McRoberts maneuver. The ObGyn arrived a minute before the birth. The baby weighed 10 lbs. The mother suffered symphysis pubis diastasis, required several surgeries, and now uses a cane to walk.

PATIENT’S CLAIM The ObGyn was negligent in not arriving in time to deliver the baby. The mother’s pelvis was injured during the McRoberts maneuver. The baby’s size was not properly estimated.

PHYSICIAN’S DEFENSE The use of the resident’s care was appropriate, as this was a teaching hospital.

VERDICT A $5.5 million New York verdict was returned.

Cancer Dx “not timely”; additional tx required

IN JUNE 2000, AN OBGYN PALPATED a pelvic mass in a postmenopausal woman. After ultrasonography (US) in August 2000, the ObGyn told the woman that a uterine fibroid had been found but no further testing was needed. In December 2001, US revealed that the mass had enlarged, but no further testing was done. In May 2002, the patient reported fatigue, distention of her abdomen, and an increase in the frequency of urination.

In July 2002, the ObGyn removed a 3-lb malignant uterine tumor during hysterectomy. A second staging surgery was performed, and the patient underwent chemotherapy.

PATIENT’S CLAIM An earlier diagnosis would have reduced the amount of treatment required. The ObGyn should have reacted immediately when the mass was first palpated in June 2000 and found on US in August 2000, as postmenopausal women do not develop uterine fibroids. A gynecologic oncologist should have been present at the hysterectomy to perform concurrent staging.

PHYSICIAN’S DEFENSE The patient failed to report symptoms that suggested cancer for 10 months; a prompt response was made when symptoms were revealed. It was appropriate to accept the results of US regarding a uterine fibroid.

VERDICT A $1.25 million New York verdict was returned.

Abnormal thickness of fetal nuchal fold

WHEN A 31-YEAR-OLD WOMAN was 18 weeks’ pregnant, she underwent ultrasonography, which was reportedly normal. The child was born with Down syndrome.

PATIENT’S CLAIM The ObGyn and radiologist failed to detect an abnormal thickness in the fetal nuchal fold—often a sign of Down syndrome.

PHYSICIANS’ DEFENSE The sonogram was properly analyzed. A thickened fold is an unreliable indicator of Down syndrome.

VERDICT A $1.7 million New Jersey settlement was returned.

Ovary retained; cancer recurs; death

A WOMAN UNDERWENT SURGERY for ovarian cancer in July 2004. She died of ovarian cancer in 2008 at age 59.

ESTATE’S CLAIM The gynecologist did not tell the patient that only one ovary was removed, or that a pathologist had not found the second ovary in the specimen. Ovarian cancer developed in the retained ovary a few years later. She would have undergone additional surgery had she known the second ovary was still there.

PHYSICIAN’S DEFENSE Both ovaries were removed in July 2004. The left ovary was not found during an autopsy performed on the decedent.

VERDICT A $1.967 million Pennsylvania verdict was returned.

These cases were selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska (www.verdictslaska.com). The information available to the editors about the cases presented here is sometimes incomplete. Moreover, the cases may or may not have merit. Nevertheless, these cases represent the types of clinical situations that typically result in litigation and are meant to illustrate nationwide variation in jury verdicts and awards.

Pelvic injury from the McRoberts maneuver?

DURING PRENATAL CARE, a woman repeatedly complained of severe discomfort, and requested a cesarean delivery. The ObGyn’s charts did not note her complaints.

A first-year resident and nurse covered for the ObGyn because he did not arrive at the hospital for hours after the mother notified him she was in labor. When shoulder dystocia was encountered, the resident used the McRoberts maneuver. The ObGyn arrived a minute before the birth. The baby weighed 10 lbs. The mother suffered symphysis pubis diastasis, required several surgeries, and now uses a cane to walk.

PATIENT’S CLAIM The ObGyn was negligent in not arriving in time to deliver the baby. The mother’s pelvis was injured during the McRoberts maneuver. The baby’s size was not properly estimated.

PHYSICIAN’S DEFENSE The use of the resident’s care was appropriate, as this was a teaching hospital.

VERDICT A $5.5 million New York verdict was returned.

Cancer Dx “not timely”; additional tx required

IN JUNE 2000, AN OBGYN PALPATED a pelvic mass in a postmenopausal woman. After ultrasonography (US) in August 2000, the ObGyn told the woman that a uterine fibroid had been found but no further testing was needed. In December 2001, US revealed that the mass had enlarged, but no further testing was done. In May 2002, the patient reported fatigue, distention of her abdomen, and an increase in the frequency of urination.

In July 2002, the ObGyn removed a 3-lb malignant uterine tumor during hysterectomy. A second staging surgery was performed, and the patient underwent chemotherapy.

PATIENT’S CLAIM An earlier diagnosis would have reduced the amount of treatment required. The ObGyn should have reacted immediately when the mass was first palpated in June 2000 and found on US in August 2000, as postmenopausal women do not develop uterine fibroids. A gynecologic oncologist should have been present at the hysterectomy to perform concurrent staging.

PHYSICIAN’S DEFENSE The patient failed to report symptoms that suggested cancer for 10 months; a prompt response was made when symptoms were revealed. It was appropriate to accept the results of US regarding a uterine fibroid.

VERDICT A $1.25 million New York verdict was returned.

Abnormal thickness of fetal nuchal fold

WHEN A 31-YEAR-OLD WOMAN was 18 weeks’ pregnant, she underwent ultrasonography, which was reportedly normal. The child was born with Down syndrome.

PATIENT’S CLAIM The ObGyn and radiologist failed to detect an abnormal thickness in the fetal nuchal fold—often a sign of Down syndrome.

PHYSICIANS’ DEFENSE The sonogram was properly analyzed. A thickened fold is an unreliable indicator of Down syndrome.

VERDICT A $1.7 million New Jersey settlement was returned.

Ovary retained; cancer recurs; death

A WOMAN UNDERWENT SURGERY for ovarian cancer in July 2004. She died of ovarian cancer in 2008 at age 59.

ESTATE’S CLAIM The gynecologist did not tell the patient that only one ovary was removed, or that a pathologist had not found the second ovary in the specimen. Ovarian cancer developed in the retained ovary a few years later. She would have undergone additional surgery had she known the second ovary was still there.

PHYSICIAN’S DEFENSE Both ovaries were removed in July 2004. The left ovary was not found during an autopsy performed on the decedent.

VERDICT A $1.967 million Pennsylvania verdict was returned.

These cases were selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska (www.verdictslaska.com). The information available to the editors about the cases presented here is sometimes incomplete. Moreover, the cases may or may not have merit. Nevertheless, these cases represent the types of clinical situations that typically result in litigation and are meant to illustrate nationwide variation in jury verdicts and awards.

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

The patient, a 50-year-old Pennsylvania woman, underwent a hysterectomy after a uterine fibroid was identified by her treating gynecologists. Because the woman had a history of breast cancer, her doctors also decided to remove her ovaries during the procedure.

According to the patient, her bladder and ureter were transected during the surgery, necessitating a temporary catheter. She was monitored for a year until she changed urologists and underwent a second surgery, during which the ureter was successfully repaired.

The plaintiff claimed that the only way for such an injury to have occurred without negligence was if she had developed scar tissue, and there was no evidence of scar tissue.

The defendants claimed that injury to the ureter is a known complication of the procedure in question. The defendants also claimed that the injury was caused by an electrocautery device that was used during the hysterectomy, and that the actual hole developed two days later and was identified when blood was detected in the plaintiff’s urine.

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

Comment
Fortunately, we do not require surgeons to be perfect.  Transecting a ureter is a known, though infrequent, complication of hysterectomy with salpingo-oophorectomy. The injury was discovered and treated, and that is what is necessary. A thorough explanation and apology can go a long way to prevent lawsuits.  Who knows whether open communication and a caring attitude might have prevented this one? —JP

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

The patient, a 50-year-old Pennsylvania woman, underwent a hysterectomy after a uterine fibroid was identified by her treating gynecologists. Because the woman had a history of breast cancer, her doctors also decided to remove her ovaries during the procedure.

According to the patient, her bladder and ureter were transected during the surgery, necessitating a temporary catheter. She was monitored for a year until she changed urologists and underwent a second surgery, during which the ureter was successfully repaired.

The plaintiff claimed that the only way for such an injury to have occurred without negligence was if she had developed scar tissue, and there was no evidence of scar tissue.

The defendants claimed that injury to the ureter is a known complication of the procedure in question. The defendants also claimed that the injury was caused by an electrocautery device that was used during the hysterectomy, and that the actual hole developed two days later and was identified when blood was detected in the plaintiff’s urine.

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

Comment
Fortunately, we do not require surgeons to be perfect.  Transecting a ureter is a known, though infrequent, complication of hysterectomy with salpingo-oophorectomy. The injury was discovered and treated, and that is what is necessary. A thorough explanation and apology can go a long way to prevent lawsuits.  Who knows whether open communication and a caring attitude might have prevented this one? —JP

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

The patient, a 50-year-old Pennsylvania woman, underwent a hysterectomy after a uterine fibroid was identified by her treating gynecologists. Because the woman had a history of breast cancer, her doctors also decided to remove her ovaries during the procedure.

According to the patient, her bladder and ureter were transected during the surgery, necessitating a temporary catheter. She was monitored for a year until she changed urologists and underwent a second surgery, during which the ureter was successfully repaired.

The plaintiff claimed that the only way for such an injury to have occurred without negligence was if she had developed scar tissue, and there was no evidence of scar tissue.

The defendants claimed that injury to the ureter is a known complication of the procedure in question. The defendants also claimed that the injury was caused by an electrocautery device that was used during the hysterectomy, and that the actual hole developed two days later and was identified when blood was detected in the plaintiff’s urine.

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

Comment
Fortunately, we do not require surgeons to be perfect.  Transecting a ureter is a known, though infrequent, complication of hysterectomy with salpingo-oophorectomy. The injury was discovered and treated, and that is what is necessary. A thorough explanation and apology can go a long way to prevent lawsuits.  Who knows whether open communication and a caring attitude might have prevented this one? —JP

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

The patient, a middle-aged Virginia man in good health, awoke one night with chills and body aches. He was seen by the defendant physicians the next day. At that visit, he was offered a chest x-ray but declined. The defendants prescribed amoxicillin and sent the man home.

During the two months that followed, the patient was seen by the defendants several times for continuing respiratory symptoms. The defendants never made a definitive diagnosis.

At the patient’s final appointment with the defendants, he underwent a chest x-ray. After reviewing the x-ray images, the defendants sent the patient to the hospital on an emergency basis. He was diagnosed with empyema (specifically, a collection of pus in the pleural space around the left lung). He underwent a left thoracotomy, left lung decortication, drainage to treat pneumonia and empyema, and a muscle flap procedure in which muscle was taken from his back to encase the affected lung. He was hospitalized for 13 days.

The plaintiff experienced partial loss of his left lung, diminished lung capacity, increased susceptibility to future infections, and psychological injuries.

At trial, the plaintiff and defendants gave conflicting testimony regarding the patient’s reported symptoms and complaints and whether the patient was “offered” or “urged” to have a chest x-ray.

Outcome
According to a published account, a $475,000 settlement was reached.

Comment
While the symptoms and complaints may have been in dispute, the patient clearly refused a chest x-ray at his initial appointment and likely refused subsequent x-ray studies. Managing a noncompliant patient is procedurally difficult and legally risky. Patients who refuse examinations, tests, or referrals may “throw off” the clinician’s diagnostic workup, with inaccurate or incomplete results.

Following a poor outcome, the plaintiff’s attorney will recast clinician–patient interactions to minimize the impact of the patient’s wishes on the clinician’s judgment, and claim that the patient would have consented but for the clinician’s failure to communicate some aspect of the refused intervention.

Therefore, when confronted with a patient refusing care, it is important to fully explain the nature of the recommended intervention. Identify and document the reasons for refusal and response to the refusal (eg, “patient refusing x-ray: concerned about radiation exposure; five-minute discussion with patient discussing relatively small radiation dosage; patient understands but insists: ‘I want no radiation.’”). When care is refused, it is generally helpful to record the patient’s actual words in quotes and the clinician’s response to the assertions.

Further, when family members are present, it is also helpful to record family members’ involvement as the patient’s refusal is addressed. Often this level of attention may change the patient’s mind or serve to enlist the support of a family member to alleviate the patient’s concerns.

Lastly, be sure to record the risks of noncompliance in plain terms (eg, “risk of death and undetected progression of serious illness discussed over 15 minutes with sister, Jane, and nurse, Camille, present”). Be frank with the patient, and be clear in the record. —DML

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

The patient, a middle-aged Virginia man in good health, awoke one night with chills and body aches. He was seen by the defendant physicians the next day. At that visit, he was offered a chest x-ray but declined. The defendants prescribed amoxicillin and sent the man home.

During the two months that followed, the patient was seen by the defendants several times for continuing respiratory symptoms. The defendants never made a definitive diagnosis.

At the patient’s final appointment with the defendants, he underwent a chest x-ray. After reviewing the x-ray images, the defendants sent the patient to the hospital on an emergency basis. He was diagnosed with empyema (specifically, a collection of pus in the pleural space around the left lung). He underwent a left thoracotomy, left lung decortication, drainage to treat pneumonia and empyema, and a muscle flap procedure in which muscle was taken from his back to encase the affected lung. He was hospitalized for 13 days.

The plaintiff experienced partial loss of his left lung, diminished lung capacity, increased susceptibility to future infections, and psychological injuries.

At trial, the plaintiff and defendants gave conflicting testimony regarding the patient’s reported symptoms and complaints and whether the patient was “offered” or “urged” to have a chest x-ray.

Outcome
According to a published account, a $475,000 settlement was reached.

Comment
While the symptoms and complaints may have been in dispute, the patient clearly refused a chest x-ray at his initial appointment and likely refused subsequent x-ray studies. Managing a noncompliant patient is procedurally difficult and legally risky. Patients who refuse examinations, tests, or referrals may “throw off” the clinician’s diagnostic workup, with inaccurate or incomplete results.

Following a poor outcome, the plaintiff’s attorney will recast clinician–patient interactions to minimize the impact of the patient’s wishes on the clinician’s judgment, and claim that the patient would have consented but for the clinician’s failure to communicate some aspect of the refused intervention.

Therefore, when confronted with a patient refusing care, it is important to fully explain the nature of the recommended intervention. Identify and document the reasons for refusal and response to the refusal (eg, “patient refusing x-ray: concerned about radiation exposure; five-minute discussion with patient discussing relatively small radiation dosage; patient understands but insists: ‘I want no radiation.’”). When care is refused, it is generally helpful to record the patient’s actual words in quotes and the clinician’s response to the assertions.

Further, when family members are present, it is also helpful to record family members’ involvement as the patient’s refusal is addressed. Often this level of attention may change the patient’s mind or serve to enlist the support of a family member to alleviate the patient’s concerns.

Lastly, be sure to record the risks of noncompliance in plain terms (eg, “risk of death and undetected progression of serious illness discussed over 15 minutes with sister, Jane, and nurse, Camille, present”). Be frank with the patient, and be clear in the record. —DML

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

The patient, a middle-aged Virginia man in good health, awoke one night with chills and body aches. He was seen by the defendant physicians the next day. At that visit, he was offered a chest x-ray but declined. The defendants prescribed amoxicillin and sent the man home.

During the two months that followed, the patient was seen by the defendants several times for continuing respiratory symptoms. The defendants never made a definitive diagnosis.

At the patient’s final appointment with the defendants, he underwent a chest x-ray. After reviewing the x-ray images, the defendants sent the patient to the hospital on an emergency basis. He was diagnosed with empyema (specifically, a collection of pus in the pleural space around the left lung). He underwent a left thoracotomy, left lung decortication, drainage to treat pneumonia and empyema, and a muscle flap procedure in which muscle was taken from his back to encase the affected lung. He was hospitalized for 13 days.

The plaintiff experienced partial loss of his left lung, diminished lung capacity, increased susceptibility to future infections, and psychological injuries.

At trial, the plaintiff and defendants gave conflicting testimony regarding the patient’s reported symptoms and complaints and whether the patient was “offered” or “urged” to have a chest x-ray.

Outcome
According to a published account, a $475,000 settlement was reached.

Comment
While the symptoms and complaints may have been in dispute, the patient clearly refused a chest x-ray at his initial appointment and likely refused subsequent x-ray studies. Managing a noncompliant patient is procedurally difficult and legally risky. Patients who refuse examinations, tests, or referrals may “throw off” the clinician’s diagnostic workup, with inaccurate or incomplete results.

Following a poor outcome, the plaintiff’s attorney will recast clinician–patient interactions to minimize the impact of the patient’s wishes on the clinician’s judgment, and claim that the patient would have consented but for the clinician’s failure to communicate some aspect of the refused intervention.

Therefore, when confronted with a patient refusing care, it is important to fully explain the nature of the recommended intervention. Identify and document the reasons for refusal and response to the refusal (eg, “patient refusing x-ray: concerned about radiation exposure; five-minute discussion with patient discussing relatively small radiation dosage; patient understands but insists: ‘I want no radiation.’”). When care is refused, it is generally helpful to record the patient’s actual words in quotes and the clinician’s response to the assertions.

Further, when family members are present, it is also helpful to record family members’ involvement as the patient’s refusal is addressed. Often this level of attention may change the patient’s mind or serve to enlist the support of a family member to alleviate the patient’s concerns.

Lastly, be sure to record the risks of noncompliance in plain terms (eg, “risk of death and undetected progression of serious illness discussed over 15 minutes with sister, Jane, and nurse, Camille, present”). Be frank with the patient, and be clear in the record. —DML

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

In July 2007, a 54-year-old Texas man was seen at a family medical clinic, owned by Ms. A. and Mr. B., seeking pain medication for a chronic back injury. Earlier that year, Ms. A. and Mr. B. had retained Mr. C. to search for a medical director for the clinic, and Dr. D. was hired.

At the patient’s July 2007 visit, he was given prescriptions for acetaminophen with hydrocodone, alprazolam, and carisoprodol. He died two days later.

Plaintiff for the decedent alleged that Dr. D. provided inappropriate dosages and an inappropriate combination of drugs. According to the plaintiff, the decedent was not examined by Dr. D., and it was Dr. D.’s routine to sign preprinted prescriptions without examining patients or even being on the clinic premises.

The plaintiff also alleged negligence in the clinic’s hiring of Dr. D., maintaining that at the time he was hired, Dr. D. was under investigation by the state medical board regarding claims that he had been prescribing narcotics for cash payments; Dr. D.’s medical license had been suspended for a time in the 1990s. The plaintiff alleged gross negligence on the part of Ms. A., Mr. B., and Mr. C. in hiring Dr. D., claiming that they were all aware of Dr. D.’s history, the investigation, and his frequent failure to examine patients.

Ms. A. and Mr. B. claimed that they were unaware of Dr. D.’s background. Mr. C. argued that he had been unable to look into Dr. D.’s background on the medical board’s Web site because he did not know how to use a computer, and that checking Dr. D.’s background was the responsibility of Ms. A. and Mr. B.

Outcome
According to a published account, Mr. B. settled for an undisclosed amount prior to trial. A jury found Dr. D. 65% at fault, the clinic 30% at fault, and Mr. C. 5% at fault. The jury awarded $1.7 million in compensatory damages, $8 million in exemplary damages against Dr. D., and $1 million in exemplary damages against the clinic.

Comment
Prescribing narcotics with no exam, compounded by using preprinted narcotic prescriptions, is clearly egregious and was appropriately met with a substantial verdict. However, a version of this patient is seen in ambulatory settings every day: the patient with chronic pain, requesting (or commonly demanding) combinations of potent substances. It bears repeating that additive effects, such as central nervous system and respiratory depression, must be considered when prescribing or refilling medications.

Cases of “unintentional overdose” are a common source of malpractice litigation. A plaintiff’s lawyer will characterize a patient’s frequent and urgent demands for controlled substances as a “cry for help”—a cry that should have been recognized by the clinician.

While the result may depend on the jury pool, many jurors would have no trouble placing blame on a clinician now cast as “an enabler.” The patient’s friends and family, who may have formerly pressured clinicians to prescribe controlled substances for the patient, now may insist the clinician “kept him drugged up.”

Ideally, patients with heavy demands for controlled substances would be evaluated and managed in a chronic pain practice, or pursuant to a chronic pain policy. Both help minimize “doctor shopping,” improve patient care and adherence to accepted pain management strategies, provide a reasonable means to handle abusive or overly demanding patients, and provide a “unified front” for prescribing within a group. Clinicians should be prepared to meet high-pressure demands for narcotics with a frank response, saying that a clinician may be sanctioned for prescribing powerful substances that can have lethal effects.

Judge the need for narcotics independently, and conduct an appropriate examination—even in the patient of another clinician who insists he or she “just needs a refill.” Explain the inherent risks of polypharmacy, and document the discussion.

Conduct short, periodic staff meetings to discuss any patients with heavy or concerning controlled substance use. At the same time, treat all patients with concern and respect and compassion. —DML 

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

In July 2007, a 54-year-old Texas man was seen at a family medical clinic, owned by Ms. A. and Mr. B., seeking pain medication for a chronic back injury. Earlier that year, Ms. A. and Mr. B. had retained Mr. C. to search for a medical director for the clinic, and Dr. D. was hired.

At the patient’s July 2007 visit, he was given prescriptions for acetaminophen with hydrocodone, alprazolam, and carisoprodol. He died two days later.

Plaintiff for the decedent alleged that Dr. D. provided inappropriate dosages and an inappropriate combination of drugs. According to the plaintiff, the decedent was not examined by Dr. D., and it was Dr. D.’s routine to sign preprinted prescriptions without examining patients or even being on the clinic premises.

The plaintiff also alleged negligence in the clinic’s hiring of Dr. D., maintaining that at the time he was hired, Dr. D. was under investigation by the state medical board regarding claims that he had been prescribing narcotics for cash payments; Dr. D.’s medical license had been suspended for a time in the 1990s. The plaintiff alleged gross negligence on the part of Ms. A., Mr. B., and Mr. C. in hiring Dr. D., claiming that they were all aware of Dr. D.’s history, the investigation, and his frequent failure to examine patients.

Ms. A. and Mr. B. claimed that they were unaware of Dr. D.’s background. Mr. C. argued that he had been unable to look into Dr. D.’s background on the medical board’s Web site because he did not know how to use a computer, and that checking Dr. D.’s background was the responsibility of Ms. A. and Mr. B.

Outcome
According to a published account, Mr. B. settled for an undisclosed amount prior to trial. A jury found Dr. D. 65% at fault, the clinic 30% at fault, and Mr. C. 5% at fault. The jury awarded $1.7 million in compensatory damages, $8 million in exemplary damages against Dr. D., and $1 million in exemplary damages against the clinic.

Comment
Prescribing narcotics with no exam, compounded by using preprinted narcotic prescriptions, is clearly egregious and was appropriately met with a substantial verdict. However, a version of this patient is seen in ambulatory settings every day: the patient with chronic pain, requesting (or commonly demanding) combinations of potent substances. It bears repeating that additive effects, such as central nervous system and respiratory depression, must be considered when prescribing or refilling medications.

Cases of “unintentional overdose” are a common source of malpractice litigation. A plaintiff’s lawyer will characterize a patient’s frequent and urgent demands for controlled substances as a “cry for help”—a cry that should have been recognized by the clinician.

While the result may depend on the jury pool, many jurors would have no trouble placing blame on a clinician now cast as “an enabler.” The patient’s friends and family, who may have formerly pressured clinicians to prescribe controlled substances for the patient, now may insist the clinician “kept him drugged up.”

Ideally, patients with heavy demands for controlled substances would be evaluated and managed in a chronic pain practice, or pursuant to a chronic pain policy. Both help minimize “doctor shopping,” improve patient care and adherence to accepted pain management strategies, provide a reasonable means to handle abusive or overly demanding patients, and provide a “unified front” for prescribing within a group. Clinicians should be prepared to meet high-pressure demands for narcotics with a frank response, saying that a clinician may be sanctioned for prescribing powerful substances that can have lethal effects.

Judge the need for narcotics independently, and conduct an appropriate examination—even in the patient of another clinician who insists he or she “just needs a refill.” Explain the inherent risks of polypharmacy, and document the discussion.

Conduct short, periodic staff meetings to discuss any patients with heavy or concerning controlled substance use. At the same time, treat all patients with concern and respect and compassion. —DML 

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

In July 2007, a 54-year-old Texas man was seen at a family medical clinic, owned by Ms. A. and Mr. B., seeking pain medication for a chronic back injury. Earlier that year, Ms. A. and Mr. B. had retained Mr. C. to search for a medical director for the clinic, and Dr. D. was hired.

At the patient’s July 2007 visit, he was given prescriptions for acetaminophen with hydrocodone, alprazolam, and carisoprodol. He died two days later.

Plaintiff for the decedent alleged that Dr. D. provided inappropriate dosages and an inappropriate combination of drugs. According to the plaintiff, the decedent was not examined by Dr. D., and it was Dr. D.’s routine to sign preprinted prescriptions without examining patients or even being on the clinic premises.

The plaintiff also alleged negligence in the clinic’s hiring of Dr. D., maintaining that at the time he was hired, Dr. D. was under investigation by the state medical board regarding claims that he had been prescribing narcotics for cash payments; Dr. D.’s medical license had been suspended for a time in the 1990s. The plaintiff alleged gross negligence on the part of Ms. A., Mr. B., and Mr. C. in hiring Dr. D., claiming that they were all aware of Dr. D.’s history, the investigation, and his frequent failure to examine patients.

Ms. A. and Mr. B. claimed that they were unaware of Dr. D.’s background. Mr. C. argued that he had been unable to look into Dr. D.’s background on the medical board’s Web site because he did not know how to use a computer, and that checking Dr. D.’s background was the responsibility of Ms. A. and Mr. B.

Outcome
According to a published account, Mr. B. settled for an undisclosed amount prior to trial. A jury found Dr. D. 65% at fault, the clinic 30% at fault, and Mr. C. 5% at fault. The jury awarded $1.7 million in compensatory damages, $8 million in exemplary damages against Dr. D., and $1 million in exemplary damages against the clinic.

Comment
Prescribing narcotics with no exam, compounded by using preprinted narcotic prescriptions, is clearly egregious and was appropriately met with a substantial verdict. However, a version of this patient is seen in ambulatory settings every day: the patient with chronic pain, requesting (or commonly demanding) combinations of potent substances. It bears repeating that additive effects, such as central nervous system and respiratory depression, must be considered when prescribing or refilling medications.

Cases of “unintentional overdose” are a common source of malpractice litigation. A plaintiff’s lawyer will characterize a patient’s frequent and urgent demands for controlled substances as a “cry for help”—a cry that should have been recognized by the clinician.

While the result may depend on the jury pool, many jurors would have no trouble placing blame on a clinician now cast as “an enabler.” The patient’s friends and family, who may have formerly pressured clinicians to prescribe controlled substances for the patient, now may insist the clinician “kept him drugged up.”

Ideally, patients with heavy demands for controlled substances would be evaluated and managed in a chronic pain practice, or pursuant to a chronic pain policy. Both help minimize “doctor shopping,” improve patient care and adherence to accepted pain management strategies, provide a reasonable means to handle abusive or overly demanding patients, and provide a “unified front” for prescribing within a group. Clinicians should be prepared to meet high-pressure demands for narcotics with a frank response, saying that a clinician may be sanctioned for prescribing powerful substances that can have lethal effects.

Judge the need for narcotics independently, and conduct an appropriate examination—even in the patient of another clinician who insists he or she “just needs a refill.” Explain the inherent risks of polypharmacy, and document the discussion.

Conduct short, periodic staff meetings to discuss any patients with heavy or concerning controlled substance use. At the same time, treat all patients with concern and respect and compassion. —DML 

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

A 39-year-old man was taken to the defendant hospital following a motor vehicle accident in New York State. He had jaw pain in addition to other complaints, and x-rays were taken. An emergency physician reviewed the results and determined that they were positive for a fracture of the radial head of the right wrist and negative for fractures of the mandible. The patient was treated for the wrist fracture and released.

The next day, hospital radiologists reviewed the man’s x-rays and noted a probable fracture of the right mandibular condyle. A radiologist contacted the emergency department (ED) to report the probable fracture. The emergency physician viewed the patient’s films again but believed that the radiologist was referring to the already diagnosed wrist fracture.

About three weeks later, the patient went to another physician complaining of persistent jaw pain and was sent for further x-rays. A diagnosis was made of a fractured mandible that had developed into a deformity of the mandibular joint. The man required two subsequent surgeries to reconstruct his jaw, but he now has temporomandibular joint dysfunction, a very painful condition.

The plaintiff alleged negligence in the emergency physician’s failure to diagnose the fracture. The hospital interpleaded a nurse practitioner who cared for the plaintiff in the ED and the treating emergency physician. The hospital claimed that the two clinicians were at fault for the delay in diagnosis.

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

Comment
Sometimes defendants win, and you can’t help but wonder why. The radiologist’s finding of a mandibular fracture would seem to override an emergency physician’s opinion to the contrary. The failure to correctly communicate or understand which fracture was in contention would not seem to be a very good explanation for this misdiagnosis. —JP

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

A 39-year-old man was taken to the defendant hospital following a motor vehicle accident in New York State. He had jaw pain in addition to other complaints, and x-rays were taken. An emergency physician reviewed the results and determined that they were positive for a fracture of the radial head of the right wrist and negative for fractures of the mandible. The patient was treated for the wrist fracture and released.

The next day, hospital radiologists reviewed the man’s x-rays and noted a probable fracture of the right mandibular condyle. A radiologist contacted the emergency department (ED) to report the probable fracture. The emergency physician viewed the patient’s films again but believed that the radiologist was referring to the already diagnosed wrist fracture.

About three weeks later, the patient went to another physician complaining of persistent jaw pain and was sent for further x-rays. A diagnosis was made of a fractured mandible that had developed into a deformity of the mandibular joint. The man required two subsequent surgeries to reconstruct his jaw, but he now has temporomandibular joint dysfunction, a very painful condition.

The plaintiff alleged negligence in the emergency physician’s failure to diagnose the fracture. The hospital interpleaded a nurse practitioner who cared for the plaintiff in the ED and the treating emergency physician. The hospital claimed that the two clinicians were at fault for the delay in diagnosis.

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

Comment
Sometimes defendants win, and you can’t help but wonder why. The radiologist’s finding of a mandibular fracture would seem to override an emergency physician’s opinion to the contrary. The failure to correctly communicate or understand which fracture was in contention would not seem to be a very good explanation for this misdiagnosis. —JP

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

A 39-year-old man was taken to the defendant hospital following a motor vehicle accident in New York State. He had jaw pain in addition to other complaints, and x-rays were taken. An emergency physician reviewed the results and determined that they were positive for a fracture of the radial head of the right wrist and negative for fractures of the mandible. The patient was treated for the wrist fracture and released.

The next day, hospital radiologists reviewed the man’s x-rays and noted a probable fracture of the right mandibular condyle. A radiologist contacted the emergency department (ED) to report the probable fracture. The emergency physician viewed the patient’s films again but believed that the radiologist was referring to the already diagnosed wrist fracture.

About three weeks later, the patient went to another physician complaining of persistent jaw pain and was sent for further x-rays. A diagnosis was made of a fractured mandible that had developed into a deformity of the mandibular joint. The man required two subsequent surgeries to reconstruct his jaw, but he now has temporomandibular joint dysfunction, a very painful condition.

The plaintiff alleged negligence in the emergency physician’s failure to diagnose the fracture. The hospital interpleaded a nurse practitioner who cared for the plaintiff in the ED and the treating emergency physician. The hospital claimed that the two clinicians were at fault for the delay in diagnosis.

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

Comment
Sometimes defendants win, and you can’t help but wonder why. The radiologist’s finding of a mandibular fracture would seem to override an emergency physician’s opinion to the contrary. The failure to correctly communicate or understand which fracture was in contention would not seem to be a very good explanation for this misdiagnosis. —JP

Did delayed cesarean delivery cause child’s brain damage?

SEVERAL HOURS AFTER A WOMAN ARRIVED at a hospital in labor, the fetal heart rate dropped to 60 beats/min. The on-call ObGyn performed a cesarean delivery 90 minutes later. The child has permanent neurologic disabilities, receives nourishment through a gastric tube, and will require full-time assistance for life.

PATIENT’S CLAIM The 90-minute delay in performing cesarean delivery caused brain damage. A compressed umbilical cord reduced the oxygen supply, compromised the fetal heart rate, and led to brain damage. There were delays in notifying the physician, assembling the surgical team, and taking the mother to the operating room. The ObGyn failed to inform the mother she could have an expedited cesarean section under local anesthesia.

DEFENDANTS’ DEFENSE The ObGyn claimed that a placental infection caused the child’s brain damage. The hospital claimed that the physician was called immediately, the surgical team was gathered as quickly as possible, and cesarean delivery was performed in a timely manner.

VERDICT An $8.5 million New Jersey settlement was reached, including $6 million for the child and $2.5 million for the parents.

PPH untreated—blood could not be found

AT AGE 36, A WOMAN GAVE BIRTH to her first child by cesarean delivery. She developed postpartum hemorrhage, but surgery was not performed because physicians believed the hospital did not have enough matched blood for a transfusion. The woman died.

It was later determined that the hospital did have the appropriate blood in its refrigerator. The estate reached a confidential settlement with the delivering physician, leaving only the hospital as defendant at trial.

ESTATE’S CLAIM The hospital failed to maintain an adequate stock of blood, failed to follow policy in procuring emergency blood, and failed to provide blood in a timely manner.

In discovery, the estate learned that a janitor had been sent to procure blood, despite hospital policy requiring that emergency blood be delivered by law enforcement. An order to type and screen the patient’s blood was given before cesarean delivery, but was not carried out for hours. The woman was type A-negative, which the hospital did not stock. The hospital did have A-positive and O-positive blood, which could have been used, but the physicians were not told it was available.

HOSPITAL’S DEFENSE The physician should have performed surgery. Blood was not needed for the procedure that would have saved the woman’s life. Her death was due to peripartum cardiomyopathy.

VERDICT A $4,623,924 Minnesota verdict was returned.

Were non-stress tests interpreted accurately?

A MOTHER BEGAN TO EXPERIENCE irregular contractions and decreased fetal movement at 38 weeks’ gestation. Her ObGyn sent her to the emergency department for a non-stress test and fetal ultrasonography. The tests were interpreted as normal, and she was discharged.

When she saw her ObGyn the next day, he repeated the non-stress test, and found the results to be reassuring and reactive.

Two days later, the ObGyn was unable to find a fetal heartbeat. He sent the woman to the hospital, where a diagnosis of intrauterine fetal demise at term was made. After attempts to induce labor were unsuccessful, a cesarean delivery was performed, and a 10-lb, 8-oz stillborn baby was delivered. The pathologist was unable to define a cause of death at autopsy.

PATIENT’S CLAIM The physician was negligent in failing to properly interpret the non-stress tests. Because of the mother’s symptoms, additional testing should have been performed that would have revealed fetal compromise, and led to delivery of a healthy baby.

PHYSICIAN’S DEFENSE The treatment provided was appropriate. The non-stress tests were properly interpreted.

VERDICT An Illinois defense verdict was returned.

Child’s arm paralyzed despite mother’s expressed concern

WHEN PREGNANT A SECOND TIME, a woman reported to Dr. A, a member of an ObGyn group, that she had a history of gestational diabetes, and that her first child had been large but had been delivered vaginally. At 28 weeks’ gestation, screening was negative for gestational diabetes. Two prenatal sonograms, performed at 35 and 37 weeks’ gestation, showed a large fetus.

The woman went into labor at 39 weeks. Dr. B, an associate of Dr. A, encountered shoulder dystocia, but freed the shoulder and completed the vaginal delivery. The baby had Apgar scores of 2, 3, and 7. He was given a diagnosis of separation of four of five nerve roots in his shoulder and has complete paralysis of the right arm, from biceps to fingers.

PATIENT'S CLAIM Knowing the mother’s history, the ObGyns were negligent in not diagnosing gestational diabetes. A cesarean delivery should have been performed because the fetus was known to be large; in fact, the mother requested cesarean delivery during labor—because she could tell the baby was larger than her first child—but the request was refused. Proper maneuvers were not used when shoulder dystocia occurred.

PHYSICIANS’ DEFENSE The prenatal charts were not sent to the hospital, so the results of the sonograms were unavailable. The fetus experienced intermittent hypoxia during delivery, resulting in a “floppy baby” more susceptible to injury during normal maneuvers. Shoulder dystocia was treated properly.

VERDICT A $1.6 million Ohio verdict was returned against the ObGyn group.

Midwife “pulled too hard”; child injured

A NURSE MIDWIFE ENCOUNTERED shoulder dystocia. Without calling for her back-up physician, she delivered the child. The baby suffers from a moderate brachial plexus injury.

PLAINTIFF’S CLAIM The midwife should have called in the physician when shoulder dystocia was encountered. The midwife pulled too hard on the child’s head, causing the injury.

DEFENDANT’S DEFENSE The midwife properly treated shoulder dystocia.

VERDICT A $950,000 North Carolina verdict was returned.

Would earlier cancer diagnosis have changed prognosis?

AFTER LAPAROSCOPIC ADHESIOLYSIS failed to resolve severe abdominal pain, a 52-year-old woman underwent removal of her ovaries and fallopian tubes in 2005. A pathologist reported that the tissue was a benign serous papillary tumor with psammoma bodies. Two years later, the woman’s abdominal pain returned, and, over the next 8 months, her primary physician sent her for several magnetic resonance imaging scans that revealed little change in the lower pelvis.

A diagnostic laparoscopy in 2008 found low-grade IIIC primary peritoneal carcinoma thought to have originated from her ovaries and fallopian tubes. The surgeon testified that there was cancer everywhere in the woman’s peritoneal cavity. After comparing pathology slides from the two procedures, the surgeon believed the tissue was virtually identical, and that the patient had been misdiagnosed in 2005.

PATIENT’S CLAIM The pathologist was at fault for not diagnosing cancer or borderline cancer in 2005. Had it been diagnosed then, the patient’s chances of survival would have been increased by almost 70%.

PHYSICIAN’S DEFENSE According to a gynecologic pathology expert who reviewed both tissue samples, the 2005 diagnosis was reasonable. An earlier diagnosis would not have changed the woman’s prognosis.

VERDICT A Washington defense verdict was returned.

Skull fracture and brain hemorrhage in infant

AFTER 11 HOURS OF LABOR, a mother developed fever. The fetal heart rate fluctuated until the baby was delivered 3 hours later. When the cervix was fully dilated, the mother’s pushing failed to result in fetal descent, and a cesarean delivery was performed. The child suffered seizures shortly after birth; magnetic resonance imaging and computed tomography scans revealed a linear skull fracture with subarachnoid hemorrhage. The discharge summary for the baby indicated hypotonia, birth depression, and acidosis.

PATIENT’S CLAIM During prenatal treatment, the ObGyn suggested the mother might require cesarean delivery because of her small stature (height, <5 ft). The injuries to the baby could have been avoided; when an arrest of labor occurred soon after the mother’s arrival at the hospital, a cesarean delivery should have been performed.

PHYSICIAN’S DEFENSE An arrest of labor did not occur; treatment provided was proper and timely

VERDICT A New York defense verdict was returned.

Did delayed cesarean delivery cause child’s brain damage?

SEVERAL HOURS AFTER A WOMAN ARRIVED at a hospital in labor, the fetal heart rate dropped to 60 beats/min. The on-call ObGyn performed a cesarean delivery 90 minutes later. The child has permanent neurologic disabilities, receives nourishment through a gastric tube, and will require full-time assistance for life.

PATIENT’S CLAIM The 90-minute delay in performing cesarean delivery caused brain damage. A compressed umbilical cord reduced the oxygen supply, compromised the fetal heart rate, and led to brain damage. There were delays in notifying the physician, assembling the surgical team, and taking the mother to the operating room. The ObGyn failed to inform the mother she could have an expedited cesarean section under local anesthesia.

DEFENDANTS’ DEFENSE The ObGyn claimed that a placental infection caused the child’s brain damage. The hospital claimed that the physician was called immediately, the surgical team was gathered as quickly as possible, and cesarean delivery was performed in a timely manner.

VERDICT An $8.5 million New Jersey settlement was reached, including $6 million for the child and $2.5 million for the parents.

PPH untreated—blood could not be found

AT AGE 36, A WOMAN GAVE BIRTH to her first child by cesarean delivery. She developed postpartum hemorrhage, but surgery was not performed because physicians believed the hospital did not have enough matched blood for a transfusion. The woman died.

It was later determined that the hospital did have the appropriate blood in its refrigerator. The estate reached a confidential settlement with the delivering physician, leaving only the hospital as defendant at trial.

ESTATE’S CLAIM The hospital failed to maintain an adequate stock of blood, failed to follow policy in procuring emergency blood, and failed to provide blood in a timely manner.

In discovery, the estate learned that a janitor had been sent to procure blood, despite hospital policy requiring that emergency blood be delivered by law enforcement. An order to type and screen the patient’s blood was given before cesarean delivery, but was not carried out for hours. The woman was type A-negative, which the hospital did not stock. The hospital did have A-positive and O-positive blood, which could have been used, but the physicians were not told it was available.

HOSPITAL’S DEFENSE The physician should have performed surgery. Blood was not needed for the procedure that would have saved the woman’s life. Her death was due to peripartum cardiomyopathy.

VERDICT A $4,623,924 Minnesota verdict was returned.

Were non-stress tests interpreted accurately?

A MOTHER BEGAN TO EXPERIENCE irregular contractions and decreased fetal movement at 38 weeks’ gestation. Her ObGyn sent her to the emergency department for a non-stress test and fetal ultrasonography. The tests were interpreted as normal, and she was discharged.

When she saw her ObGyn the next day, he repeated the non-stress test, and found the results to be reassuring and reactive.

Two days later, the ObGyn was unable to find a fetal heartbeat. He sent the woman to the hospital, where a diagnosis of intrauterine fetal demise at term was made. After attempts to induce labor were unsuccessful, a cesarean delivery was performed, and a 10-lb, 8-oz stillborn baby was delivered. The pathologist was unable to define a cause of death at autopsy.

PATIENT’S CLAIM The physician was negligent in failing to properly interpret the non-stress tests. Because of the mother’s symptoms, additional testing should have been performed that would have revealed fetal compromise, and led to delivery of a healthy baby.

PHYSICIAN’S DEFENSE The treatment provided was appropriate. The non-stress tests were properly interpreted.

VERDICT An Illinois defense verdict was returned.

Child’s arm paralyzed despite mother’s expressed concern

WHEN PREGNANT A SECOND TIME, a woman reported to Dr. A, a member of an ObGyn group, that she had a history of gestational diabetes, and that her first child had been large but had been delivered vaginally. At 28 weeks’ gestation, screening was negative for gestational diabetes. Two prenatal sonograms, performed at 35 and 37 weeks’ gestation, showed a large fetus.

The woman went into labor at 39 weeks. Dr. B, an associate of Dr. A, encountered shoulder dystocia, but freed the shoulder and completed the vaginal delivery. The baby had Apgar scores of 2, 3, and 7. He was given a diagnosis of separation of four of five nerve roots in his shoulder and has complete paralysis of the right arm, from biceps to fingers.

PATIENT'S CLAIM Knowing the mother’s history, the ObGyns were negligent in not diagnosing gestational diabetes. A cesarean delivery should have been performed because the fetus was known to be large; in fact, the mother requested cesarean delivery during labor—because she could tell the baby was larger than her first child—but the request was refused. Proper maneuvers were not used when shoulder dystocia occurred.

PHYSICIANS’ DEFENSE The prenatal charts were not sent to the hospital, so the results of the sonograms were unavailable. The fetus experienced intermittent hypoxia during delivery, resulting in a “floppy baby” more susceptible to injury during normal maneuvers. Shoulder dystocia was treated properly.

VERDICT A $1.6 million Ohio verdict was returned against the ObGyn group.

Midwife “pulled too hard”; child injured

A NURSE MIDWIFE ENCOUNTERED shoulder dystocia. Without calling for her back-up physician, she delivered the child. The baby suffers from a moderate brachial plexus injury.

PLAINTIFF’S CLAIM The midwife should have called in the physician when shoulder dystocia was encountered. The midwife pulled too hard on the child’s head, causing the injury.

DEFENDANT’S DEFENSE The midwife properly treated shoulder dystocia.

VERDICT A $950,000 North Carolina verdict was returned.

Would earlier cancer diagnosis have changed prognosis?

AFTER LAPAROSCOPIC ADHESIOLYSIS failed to resolve severe abdominal pain, a 52-year-old woman underwent removal of her ovaries and fallopian tubes in 2005. A pathologist reported that the tissue was a benign serous papillary tumor with psammoma bodies. Two years later, the woman’s abdominal pain returned, and, over the next 8 months, her primary physician sent her for several magnetic resonance imaging scans that revealed little change in the lower pelvis.

A diagnostic laparoscopy in 2008 found low-grade IIIC primary peritoneal carcinoma thought to have originated from her ovaries and fallopian tubes. The surgeon testified that there was cancer everywhere in the woman’s peritoneal cavity. After comparing pathology slides from the two procedures, the surgeon believed the tissue was virtually identical, and that the patient had been misdiagnosed in 2005.

PATIENT’S CLAIM The pathologist was at fault for not diagnosing cancer or borderline cancer in 2005. Had it been diagnosed then, the patient’s chances of survival would have been increased by almost 70%.

PHYSICIAN’S DEFENSE According to a gynecologic pathology expert who reviewed both tissue samples, the 2005 diagnosis was reasonable. An earlier diagnosis would not have changed the woman’s prognosis.

VERDICT A Washington defense verdict was returned.

Skull fracture and brain hemorrhage in infant

AFTER 11 HOURS OF LABOR, a mother developed fever. The fetal heart rate fluctuated until the baby was delivered 3 hours later. When the cervix was fully dilated, the mother’s pushing failed to result in fetal descent, and a cesarean delivery was performed. The child suffered seizures shortly after birth; magnetic resonance imaging and computed tomography scans revealed a linear skull fracture with subarachnoid hemorrhage. The discharge summary for the baby indicated hypotonia, birth depression, and acidosis.

PATIENT’S CLAIM During prenatal treatment, the ObGyn suggested the mother might require cesarean delivery because of her small stature (height, <5 ft). The injuries to the baby could have been avoided; when an arrest of labor occurred soon after the mother’s arrival at the hospital, a cesarean delivery should have been performed.

PHYSICIAN’S DEFENSE An arrest of labor did not occur; treatment provided was proper and timely

VERDICT A New York defense verdict was returned.

Did delayed cesarean delivery cause child’s brain damage?

SEVERAL HOURS AFTER A WOMAN ARRIVED at a hospital in labor, the fetal heart rate dropped to 60 beats/min. The on-call ObGyn performed a cesarean delivery 90 minutes later. The child has permanent neurologic disabilities, receives nourishment through a gastric tube, and will require full-time assistance for life.

PATIENT’S CLAIM The 90-minute delay in performing cesarean delivery caused brain damage. A compressed umbilical cord reduced the oxygen supply, compromised the fetal heart rate, and led to brain damage. There were delays in notifying the physician, assembling the surgical team, and taking the mother to the operating room. The ObGyn failed to inform the mother she could have an expedited cesarean section under local anesthesia.

DEFENDANTS’ DEFENSE The ObGyn claimed that a placental infection caused the child’s brain damage. The hospital claimed that the physician was called immediately, the surgical team was gathered as quickly as possible, and cesarean delivery was performed in a timely manner.

VERDICT An $8.5 million New Jersey settlement was reached, including $6 million for the child and $2.5 million for the parents.

PPH untreated—blood could not be found

AT AGE 36, A WOMAN GAVE BIRTH to her first child by cesarean delivery. She developed postpartum hemorrhage, but surgery was not performed because physicians believed the hospital did not have enough matched blood for a transfusion. The woman died.

It was later determined that the hospital did have the appropriate blood in its refrigerator. The estate reached a confidential settlement with the delivering physician, leaving only the hospital as defendant at trial.

ESTATE’S CLAIM The hospital failed to maintain an adequate stock of blood, failed to follow policy in procuring emergency blood, and failed to provide blood in a timely manner.

In discovery, the estate learned that a janitor had been sent to procure blood, despite hospital policy requiring that emergency blood be delivered by law enforcement. An order to type and screen the patient’s blood was given before cesarean delivery, but was not carried out for hours. The woman was type A-negative, which the hospital did not stock. The hospital did have A-positive and O-positive blood, which could have been used, but the physicians were not told it was available.

HOSPITAL’S DEFENSE The physician should have performed surgery. Blood was not needed for the procedure that would have saved the woman’s life. Her death was due to peripartum cardiomyopathy.

VERDICT A $4,623,924 Minnesota verdict was returned.

Were non-stress tests interpreted accurately?

A MOTHER BEGAN TO EXPERIENCE irregular contractions and decreased fetal movement at 38 weeks’ gestation. Her ObGyn sent her to the emergency department for a non-stress test and fetal ultrasonography. The tests were interpreted as normal, and she was discharged.

When she saw her ObGyn the next day, he repeated the non-stress test, and found the results to be reassuring and reactive.

Two days later, the ObGyn was unable to find a fetal heartbeat. He sent the woman to the hospital, where a diagnosis of intrauterine fetal demise at term was made. After attempts to induce labor were unsuccessful, a cesarean delivery was performed, and a 10-lb, 8-oz stillborn baby was delivered. The pathologist was unable to define a cause of death at autopsy.

PATIENT’S CLAIM The physician was negligent in failing to properly interpret the non-stress tests. Because of the mother’s symptoms, additional testing should have been performed that would have revealed fetal compromise, and led to delivery of a healthy baby.

PHYSICIAN’S DEFENSE The treatment provided was appropriate. The non-stress tests were properly interpreted.

VERDICT An Illinois defense verdict was returned.

Child’s arm paralyzed despite mother’s expressed concern

WHEN PREGNANT A SECOND TIME, a woman reported to Dr. A, a member of an ObGyn group, that she had a history of gestational diabetes, and that her first child had been large but had been delivered vaginally. At 28 weeks’ gestation, screening was negative for gestational diabetes. Two prenatal sonograms, performed at 35 and 37 weeks’ gestation, showed a large fetus.

The woman went into labor at 39 weeks. Dr. B, an associate of Dr. A, encountered shoulder dystocia, but freed the shoulder and completed the vaginal delivery. The baby had Apgar scores of 2, 3, and 7. He was given a diagnosis of separation of four of five nerve roots in his shoulder and has complete paralysis of the right arm, from biceps to fingers.

PATIENT'S CLAIM Knowing the mother’s history, the ObGyns were negligent in not diagnosing gestational diabetes. A cesarean delivery should have been performed because the fetus was known to be large; in fact, the mother requested cesarean delivery during labor—because she could tell the baby was larger than her first child—but the request was refused. Proper maneuvers were not used when shoulder dystocia occurred.

PHYSICIANS’ DEFENSE The prenatal charts were not sent to the hospital, so the results of the sonograms were unavailable. The fetus experienced intermittent hypoxia during delivery, resulting in a “floppy baby” more susceptible to injury during normal maneuvers. Shoulder dystocia was treated properly.

VERDICT A $1.6 million Ohio verdict was returned against the ObGyn group.

Midwife “pulled too hard”; child injured

A NURSE MIDWIFE ENCOUNTERED shoulder dystocia. Without calling for her back-up physician, she delivered the child. The baby suffers from a moderate brachial plexus injury.

PLAINTIFF’S CLAIM The midwife should have called in the physician when shoulder dystocia was encountered. The midwife pulled too hard on the child’s head, causing the injury.

DEFENDANT’S DEFENSE The midwife properly treated shoulder dystocia.

VERDICT A $950,000 North Carolina verdict was returned.

Would earlier cancer diagnosis have changed prognosis?

AFTER LAPAROSCOPIC ADHESIOLYSIS failed to resolve severe abdominal pain, a 52-year-old woman underwent removal of her ovaries and fallopian tubes in 2005. A pathologist reported that the tissue was a benign serous papillary tumor with psammoma bodies. Two years later, the woman’s abdominal pain returned, and, over the next 8 months, her primary physician sent her for several magnetic resonance imaging scans that revealed little change in the lower pelvis.

A diagnostic laparoscopy in 2008 found low-grade IIIC primary peritoneal carcinoma thought to have originated from her ovaries and fallopian tubes. The surgeon testified that there was cancer everywhere in the woman’s peritoneal cavity. After comparing pathology slides from the two procedures, the surgeon believed the tissue was virtually identical, and that the patient had been misdiagnosed in 2005.

PATIENT’S CLAIM The pathologist was at fault for not diagnosing cancer or borderline cancer in 2005. Had it been diagnosed then, the patient’s chances of survival would have been increased by almost 70%.

PHYSICIAN’S DEFENSE According to a gynecologic pathology expert who reviewed both tissue samples, the 2005 diagnosis was reasonable. An earlier diagnosis would not have changed the woman’s prognosis.

VERDICT A Washington defense verdict was returned.

Skull fracture and brain hemorrhage in infant

AFTER 11 HOURS OF LABOR, a mother developed fever. The fetal heart rate fluctuated until the baby was delivered 3 hours later. When the cervix was fully dilated, the mother’s pushing failed to result in fetal descent, and a cesarean delivery was performed. The child suffered seizures shortly after birth; magnetic resonance imaging and computed tomography scans revealed a linear skull fracture with subarachnoid hemorrhage. The discharge summary for the baby indicated hypotonia, birth depression, and acidosis.

PATIENT’S CLAIM During prenatal treatment, the ObGyn suggested the mother might require cesarean delivery because of her small stature (height, <5 ft). The injuries to the baby could have been avoided; when an arrest of labor occurred soon after the mother’s arrival at the hospital, a cesarean delivery should have been performed.

PHYSICIAN’S DEFENSE An arrest of labor did not occur; treatment provided was proper and timely

VERDICT A New York defense verdict was returned.

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

A Massachusetts woman, age 43, presented to her physician’s office complaining of a throbbing headache that had worsened progressively over the previous 48 hours. She was seen by a covering physician to whom she reported symptoms of nausea, vomiting, and photophobia. She had a history of headaches, which she attributed to a previous ear surgery.

The covering physician treated the patient with pain and anti-nausea medications and told her to follow up with her regular primary care provider. The woman went home and fell asleep on her couch. She later died in her sleep. Autopsy findings indicated that the cause of death was bacterial meningitis.

The plaintiff claimed that the question of whether the defendant physician should have considered bacterial meningitis turned on the presence of nuchal rigidity (stiff neck). The defendant conceded that if he had noticed nuchal rigidity, he would have entertained bacterial meningitis in the differential diagnosis. He testified that the decedent was negative for nuchal rigidity but that he had not recorded that finding. The plaintiff presented witnesses who observed that the woman was unable to move her neck during the time of her illness.

Outcome
A $1.45 million settlement was reached.

Comment
This is a classic case of documentation failure. Clearly, not every detail of every exam can be documented in a busy practice, but when a diagnostic decision is made based upon a defining symptom, as it was in this case, then the presence or absence of the defining symptom must be documented. Here, nuchal rigidity is the factor that distinguishes a routine headache from a headache that may be related to bacterial meningitis. Testimony without a record to back it up when it relates to this crucial fact may well have made the difference between a defense and plaintiff’s verdict. —JP

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

A Massachusetts woman, age 43, presented to her physician’s office complaining of a throbbing headache that had worsened progressively over the previous 48 hours. She was seen by a covering physician to whom she reported symptoms of nausea, vomiting, and photophobia. She had a history of headaches, which she attributed to a previous ear surgery.

The covering physician treated the patient with pain and anti-nausea medications and told her to follow up with her regular primary care provider. The woman went home and fell asleep on her couch. She later died in her sleep. Autopsy findings indicated that the cause of death was bacterial meningitis.

The plaintiff claimed that the question of whether the defendant physician should have considered bacterial meningitis turned on the presence of nuchal rigidity (stiff neck). The defendant conceded that if he had noticed nuchal rigidity, he would have entertained bacterial meningitis in the differential diagnosis. He testified that the decedent was negative for nuchal rigidity but that he had not recorded that finding. The plaintiff presented witnesses who observed that the woman was unable to move her neck during the time of her illness.

Outcome
A $1.45 million settlement was reached.

Comment
This is a classic case of documentation failure. Clearly, not every detail of every exam can be documented in a busy practice, but when a diagnostic decision is made based upon a defining symptom, as it was in this case, then the presence or absence of the defining symptom must be documented. Here, nuchal rigidity is the factor that distinguishes a routine headache from a headache that may be related to bacterial meningitis. Testimony without a record to back it up when it relates to this crucial fact may well have made the difference between a defense and plaintiff’s verdict. —JP

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

A Massachusetts woman, age 43, presented to her physician’s office complaining of a throbbing headache that had worsened progressively over the previous 48 hours. She was seen by a covering physician to whom she reported symptoms of nausea, vomiting, and photophobia. She had a history of headaches, which she attributed to a previous ear surgery.

The covering physician treated the patient with pain and anti-nausea medications and told her to follow up with her regular primary care provider. The woman went home and fell asleep on her couch. She later died in her sleep. Autopsy findings indicated that the cause of death was bacterial meningitis.

The plaintiff claimed that the question of whether the defendant physician should have considered bacterial meningitis turned on the presence of nuchal rigidity (stiff neck). The defendant conceded that if he had noticed nuchal rigidity, he would have entertained bacterial meningitis in the differential diagnosis. He testified that the decedent was negative for nuchal rigidity but that he had not recorded that finding. The plaintiff presented witnesses who observed that the woman was unable to move her neck during the time of her illness.

Outcome
A $1.45 million settlement was reached.

Comment
This is a classic case of documentation failure. Clearly, not every detail of every exam can be documented in a busy practice, but when a diagnostic decision is made based upon a defining symptom, as it was in this case, then the presence or absence of the defining symptom must be documented. Here, nuchal rigidity is the factor that distinguishes a routine headache from a headache that may be related to bacterial meningitis. Testimony without a record to back it up when it relates to this crucial fact may well have made the difference between a defense and plaintiff’s verdict. —JP

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

A Kansas woman, age 41, presented to an ED on Christmas Day with cough, congestion, difficulty breathing, and a two-week history of flu-like symptoms (chest tightness and body aches); this, she had attributed to previously diagnosed fibromyalgia.

In the ED, the patient was seen by the defendant physician assistant, who made a diagnosis of sinusitis with a flare-up of her fibromyalgia. Medication was prescribed, and she was discharged after about two hours.

On the way home, the woman experienced cardiac arrest. She was returned to the hospital and pronounced dead less than two hours after discharge.

The plaintiff alleged negligence in the PA’s failure to order an ECG. The defendant denied that an ECG was indicated and claimed that the treatment provided was reasonable.

Outcome
Plaintiff settled with the hospital for an undisclosed amount prior to trial. A defense verdict was returned.

Comment
In this case, we don’t know the reproducibility or magnitude of the patient’s chest pain. Her history of fibromyalgia and flu-like symptoms may have blurred the presentation, which included “chest tightness”—especially considering that fibromyalgia can cause tender points over the anterior chest wall. Further, because 6% to 15% of patients with acute MI will exhibit some degree of reproducible chest tenderness, tenderness on exam can be misleading. Additionally, women with acute coronary syndrome (ACS) commonly present with subtle and nonspecific findings, including dyspnea, fatigue, and weakness. Frank chest pain is often absent.

During litigation, a plaintiff’s attorney will commonly argue that a “five-minute” test (such as an ECG) would have saved a patient. Here, the attorney likely offered expert testimony that ACS presentation can be subtle and atypical and that reasonably prudent clinicians should know this. Jurors familiar with ECGs as quick and noninvasive could reach the conclusion that a complaint of chest tightness in a 41-year-old woman requires that ACS be considered, regardless of her own opinion of the cause. It is important to have an index of suspicion for ACS, even without classic symptoms. It is also important to voice respect for the patient’s self-diagnosis, yet resist our temptation to hastily agree with any patient’s diagnostic assessment. —DML

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

A Kansas woman, age 41, presented to an ED on Christmas Day with cough, congestion, difficulty breathing, and a two-week history of flu-like symptoms (chest tightness and body aches); this, she had attributed to previously diagnosed fibromyalgia.

In the ED, the patient was seen by the defendant physician assistant, who made a diagnosis of sinusitis with a flare-up of her fibromyalgia. Medication was prescribed, and she was discharged after about two hours.

On the way home, the woman experienced cardiac arrest. She was returned to the hospital and pronounced dead less than two hours after discharge.

The plaintiff alleged negligence in the PA’s failure to order an ECG. The defendant denied that an ECG was indicated and claimed that the treatment provided was reasonable.

Outcome
Plaintiff settled with the hospital for an undisclosed amount prior to trial. A defense verdict was returned.

Comment
In this case, we don’t know the reproducibility or magnitude of the patient’s chest pain. Her history of fibromyalgia and flu-like symptoms may have blurred the presentation, which included “chest tightness”—especially considering that fibromyalgia can cause tender points over the anterior chest wall. Further, because 6% to 15% of patients with acute MI will exhibit some degree of reproducible chest tenderness, tenderness on exam can be misleading. Additionally, women with acute coronary syndrome (ACS) commonly present with subtle and nonspecific findings, including dyspnea, fatigue, and weakness. Frank chest pain is often absent.

During litigation, a plaintiff’s attorney will commonly argue that a “five-minute” test (such as an ECG) would have saved a patient. Here, the attorney likely offered expert testimony that ACS presentation can be subtle and atypical and that reasonably prudent clinicians should know this. Jurors familiar with ECGs as quick and noninvasive could reach the conclusion that a complaint of chest tightness in a 41-year-old woman requires that ACS be considered, regardless of her own opinion of the cause. It is important to have an index of suspicion for ACS, even without classic symptoms. It is also important to voice respect for the patient’s self-diagnosis, yet resist our temptation to hastily agree with any patient’s diagnostic assessment. —DML

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

A Kansas woman, age 41, presented to an ED on Christmas Day with cough, congestion, difficulty breathing, and a two-week history of flu-like symptoms (chest tightness and body aches); this, she had attributed to previously diagnosed fibromyalgia.

In the ED, the patient was seen by the defendant physician assistant, who made a diagnosis of sinusitis with a flare-up of her fibromyalgia. Medication was prescribed, and she was discharged after about two hours.

On the way home, the woman experienced cardiac arrest. She was returned to the hospital and pronounced dead less than two hours after discharge.

The plaintiff alleged negligence in the PA’s failure to order an ECG. The defendant denied that an ECG was indicated and claimed that the treatment provided was reasonable.

Outcome
Plaintiff settled with the hospital for an undisclosed amount prior to trial. A defense verdict was returned.

Comment
In this case, we don’t know the reproducibility or magnitude of the patient’s chest pain. Her history of fibromyalgia and flu-like symptoms may have blurred the presentation, which included “chest tightness”—especially considering that fibromyalgia can cause tender points over the anterior chest wall. Further, because 6% to 15% of patients with acute MI will exhibit some degree of reproducible chest tenderness, tenderness on exam can be misleading. Additionally, women with acute coronary syndrome (ACS) commonly present with subtle and nonspecific findings, including dyspnea, fatigue, and weakness. Frank chest pain is often absent.

During litigation, a plaintiff’s attorney will commonly argue that a “five-minute” test (such as an ECG) would have saved a patient. Here, the attorney likely offered expert testimony that ACS presentation can be subtle and atypical and that reasonably prudent clinicians should know this. Jurors familiar with ECGs as quick and noninvasive could reach the conclusion that a complaint of chest tightness in a 41-year-old woman requires that ACS be considered, regardless of her own opinion of the cause. It is important to have an index of suspicion for ACS, even without classic symptoms. It is also important to voice respect for the patient’s self-diagnosis, yet resist our temptation to hastily agree with any patient’s diagnostic assessment. —DML