The Story: “On the day of Mr. Charney’s surgery, to reduce the possibility of  infection, I applied a solution designed to remove dirt, oil, and microbes from his skin,” Nurse Pearson recalled. “I scrubbed the skin with an antiseptic solution, then painted the skin with the same solution.”

On April 15, Robert Charney underwent a hemorrhoidectomy at Memorial Hospital.

“The surgery was completed without any apparent complications,” testified Dr. Brody, the surgeon. “In the days following the surgery, however, Mr. Charney developed a low-grade fever. He also experienced urinary retention, nausea, vomiting, and abdominal pain. Redness and swelling in the area of the surgery appeared as well.”

On April 20, with the other symptoms persisting, Mr. Charney began to experience chest pain and shortness of breath.

“I found that the skin around the site of the surgery appeared to be infected,” Dr. Brody continued. “I ordered treatment with antibiotics.”

Mr. Charney nonetheless developed a serious respiratory problem and several other complications that eventually led to his death.

Mrs. Charney filed a medical malpractice suit against the hospital. At trial, Nurse Lewin, a registered nurse, and Dr. Wang, a surgeon, testified as her medical experts.

“From my review of Mr. Charney’s medical records,” Nurse Lewin stated, “it does not appear that Nurse Pearson could have completed both steps of the site preparation process. The medical records indicate that the preparation was completed in 8 minutes. It would have been very difficult for Nurse Pearson to have both scrubbed and painted the site in such a short period of time.”

To establish causation, Mrs. Charney asked Dr. Wang, a surgeon, to testify regarding the source of the infection.

“If the surgical site, including the anus, the buttocks, and the perineal area, was not properly prepared,” Dr. Wang told the jury, “that could have been the source of the bacteria that infected Mr. Charney.”

The hospital argued, however, that Mrs. Charney failed to present substantial evidence that Nurse Pearson had breached the applicable standard of care in her preoperative preparation of the surgical site or that the nurse’s alleged failures proximately caused the patient’s infection.

“Nurse Pearson has stated, under oath, that she both ‘scrubbed’ and ‘painted’ the surgical site, as required by the standard of care described by Nurse Lewin,” the hospital’s attorney argued. “Nurse Lewin did not provide any solid evidence to refute Nurse Pearson’s testimony.

“Furthermore, the testimony as to causation was insufficient,” the hospital’s attorney continued. “Although Dr. Wang stated that inadequate preparation of the surgical site ‘could have’ been the source of the infection, he also said that the infection could have come from the operative procedure itself or from the repeated catheterizations needed to treat Mr. Charney’s urinary retention.”

The Result: The jury will have to decide this case, ruled the Alabama Supreme Court.

Although this is a close case, Mrs. Charney presented sufficient evidence from which a reasonable jury could conclude that the hospital, through Nurse Pearson, breached the applicable standard of care, and that Mr. Charney’s infection and subsequent death were the proximate results of that breach. Accordingly, the hospital is not entitled to judgment as a matter of law, and the trial is needed.

(CaseLawStories™ 0308001)(770 So. 2d 49)

Comment: In order to have a case submitted to a jury, a patient must provide evidence, through expert medical testimony, of (a) the applicable standard of care; (b) a breach of that standard of care; and (c) damages incurred as a result of the alleged breach. If the patient meets these requirements, then all three of the above elements must be proved at trial by a preponderance of the evidence.

The Story: “Battery!” protested Dr. Marlow. “When Mrs. Taylor consented to the colon resection, she also authorized any additional procedures as were deemed medically necessary. It was impossible to complete the colon resection without the removal of Mrs. Taylor’s abnormally large uterus.”

On January 2, 56-year-old Laura Taylor met with Dr. Marlow regarding the surgical removal of a lesion on her lower colon.

“I told Mrs. Taylor that, because removing the tumor from her colon required abdominal surgery, I recommended that I also remove her appendix, uterus, and ovaries,” Dr. Marlow testified. “Mrs. Taylor agreed to the appendectomy, but she said that she did not want any of her ‘female parts’ removed.

“I explained that I might need to perform the hysterectomy if there was tumor involvement,” continued Dr. Marlow. “We agreed that I would only remove her uterus and ovaries if it was medically necessary.”

Before undergoing the surgery, Mrs. Taylor signed a consent form stating that the procedures to be performed were “an anterior resection of the colon with appendectomy and possible bilateral oophorectomy.”

The consent form also stated:

“I understand that, during the course of the procedure(s) or operation(s), unforeseen conditions may require additional or different procedures than those listed above. I, therefore, authorize and request that the above-named physician, his/her associates, assistants, or consultants perform such additional procedures as are deemed necessary in their professional judgment.”

During the surgery, Dr. Marlow found that Mrs. Taylor’s uterus was pressing on the front wall of the rectum where the lesion was to be excised. Dr. Marlow called for a gynecology consult.

“I was paged and went to the operating room,” stated the gynecologist. “Mrs. Taylor’s uterus was more than double the normal size of the uterus of a 56-year-old woman who is not taking hormones. The uterus had multiple benign fibroid tumors. It was also possibly cancerous.”

The gynecologist performed the oophorectomy and a hysterectomy. When Mrs. Taylor subsequently learned that the doctors had performed a complete hysterectomy, she sued them both for medical battery.

“The postoperative pathology report confirmed that there was no cancer in either my uterus or my ovaries,” Mrs. Taylor stated. “When I signed the consent form, I had no idea that an oophorectomy referred to removal of my ovaries. Furthermore, the consent form made no mention of a hysterectomy.”

Dr. Marlow responded that the hysterectomy was an additional procedure that, in her professional judgment, was medically necessary.

“I could not perform the colorectal resection without the hysterectomy and oophorectomy that were performed by the gynecologist,” Dr. Marlow explained. “In addition, I was concerned that Mrs. Taylor was suffering from extensive cancer that had spread to her uterus, requiring emergency action.”

The Result: The doctors are not liable for battery, ruled the Kentucky Supreme Court.

Mrs. Taylor has not presented sufficient evidence to rebut the clear and unambiguous words of the consent form she signed. The signature on her consent form directly authorized the oophorectomy. The additional surgical procedure to remove the uterus became medically necessary once the enlarged uterus was observed, because it impaired and im-peded Dr. Marlow’s ability to resect the lesion on the colon.

The existence of a signed consent form gives rise to a presumption that patients ordinarily read and take whatever other measures are necessary to understand the nature, terms, and general meaning of consent. To hold otherwise would negate the legal significance of written consent forms signed by the patient and would render the consent form completely unreliable.
( 0207002)(199 S.W.3d 147)
Comment: In cases where there is no medical negligence, physicians may still have potential liability for subsequent claims of medical battery and/or treatment without the informed consent of the patient.

Battery is charged if a patient claims that the medical treatment performed by the physician was completely unauthorized. When battery is proven, in addition to compensation for their physical injuries, patients are entitled to compensation for mental distress caused by the nonconsensual touching.

Even when consent is given, a patient may allege that the consent was not “informed.” In general, to obtain informed consent, a physician must explain to the patient the nature of his or her ailment, the nature of the proposed treatment and its alternatives, the probability of the proposed treatment’s success and its alternatives, and the risks of unfortunate consequences associated with the proposed treatment and its alternatives.

As this case illustrates, a signed consent form—while extremely useful in defending allegations of battery and/or lack of informed consent—is not a guarantee that charges will not be asserted. In many instances, allegations of battery or lack of informed consent are a reflection of a break-down in the trust implicit in a physician-patient relationship. Therefore, before a patient signs a consent form, physicians need to allow sufficient time to answer all of the patient’s questions, explain medical terms, and prepare patients sufficiently for some of the worst-case scenarios.

The Story: “Narcotics can cause respiratory depression,” began Dr. Wexler. “The nurses should have been monitoring Mr. Grady’s vital signs.”

Brian Grady, who had severe pain due to kidney stones, arrived at the hospital emergency room at 4:35 p.m. “We gave him a five-milligram intravenous dose of a narcotic pain medication,” testified the emergency room physician. “A pulse oximeter measured his oxygen saturation level at 96 percent.”

A second five-milligram dose was administered at 4:52 p.m., and Mr. Grady’s oxygen saturation was recorded at 94 percent. At 5:40 p.m., Mr. Grady received five more milligrams of the narcotic. His respiration rate at that time was 24, and his oxygen saturation level was 92 percent.

“We gave Mr. Grady an additional five milligrams of the pain medication at 6:05 p.m., and five more milligrams at 6:20 p.m.,” the emergency room physician continued. “After he received the narcotic at 6:20 p.m., his oxygen saturation decreased to 86 percent, a level we considered to be abnormal. Because of the decrease, Mr. Grady started receiving oxygen immediately.”

At 7:35 p.m, Mr. Grady’s oxygen saturation level had increased to 94 percent. At 7:40 p.m., he was given five more milligrams of the narcotic.

“Mr. Grady was admitted to the hospital at 8:15 p.m.,” testified Dr. Wexler, the attending, assigned to his case. “My orders said that he could receive 10 to 15 milligrams of narcotic pain medication and 25 to 50 milligrams of an antinauseant. I left the precise levels to the nurses’ discretion. I expected the nurses to assess Mr. Grady’s pain, monitor his vital signs, observe his degree of ambulation, and record his urinary output.”

At 10:15 p.m, a registered nurse administered 50 milligrams of the antinauseant and 15 milligrams of the narcotic pain medication. No one took Mr. Grady’s vital signs for the next three hours.

Mr. Grady was found sleeping at 11:00 p.m. At midnight, the nurse did not take Mr. Grady’s vital signs, because he was sleeping, but she saw his chest rise and fall under the covers. When making rounds at 1:05 a.m., the nurse discovered that Mr. Grady was unresponsive and had no pulse or respiratory rate. Doctors responding to the “code blue” could not revive him.

Mrs. Grady sued the hospital. “The hospital breached its duty of care when its nursing personnel failed to monitor Mr. Grady for adverse effects of narcotics,” her malpractice complaint charged. “If Mr. Grady’s vital signs had been monitored by the nurses, his breathing problems would have been noticeable and could have been reversed.”

At trial, the expert testifying on behalf of Mrs. Grady stated, “Given Mr. Grady’s reaction to the drugs administered in the emergency room, the nurses should have monitored his vital signs closely. Mr. Grady died because of the respiratory depressant effect of the narcotic pain medication combined with the antinauseant.”

“But,” responded the hospital’s expert, “the levels of narcotic in Mr. Grady’s blood were neither toxic nor lethal.”

At the conclusion of the trial, the jury returned a verdict in favor of Mrs. Grady. The hospital appealed.

“There’s no proof that Mr. Grady’s death was the result of respiratory depression caused by the narcotic,” argued the hospital’s attorney.

The Result: Pay up, ruled the Ohio Court of Appeals, concluding that there was sufficient expert medical testimony to support the jury’s verdict.

Through expert medical testimony, Mrs. Grady presented adequate evidence from which the jury could conclude that Mr. Grady’s death was a result of medical negligence. Her expert’s opinion, that Mr. Grady died as a result of the respiratory depressant effect of narcotic pain medication combined with the antinauseant, was based on the following: 1) Mr. Grady was a 39-year-old man in fairly good health who died of no other obvious cause; 2) Mr. Grady experienced respiratory depression after the narcotic was administered in the emergency room, several hours prior to his death, indicating that he had a greater-than-normal sensitivity to narcotics; 3) despite the respiratory depression, Mr. Grady was given additional narcotics that would have had additional respiratory depressant effects; 4) despite the kidney stone, Mr. Grady was found sleeping at 11:00 p.m. and at midnight, suggesting that “he had a very high degree of sedation” from the narcotics; and 5) Mr. Grady’s death occurred two to three hours after an intramuscular dose of 12E .

(CaseLawStories™ 1105001)(1998 WL 212853)

Comment: To prevail in a medical malpractice case, the patient, or the patient’s survivors, must establish the applicable standard of care, a breach of that standard, and a causal relationship between the negligence and the patient’s injuries.

The Story: “Had Mr. Rosen not tried the bone graft first, he still would have had to undergo the hip replacements due to the severe avascular necrosis of his hip joints,” Dr. Newman explained. “The bone grafts were an effort to postpone the inevitable. Total hip replacement was highly undesirable for a person of Mr. Rosen’s young age, because it requires many adjustments and/or replacements during a patient’s lifespan.”
   
Peter Rosen first saw Dr. Newman on March 27.
   
“Mr. Rosen, who was 29 years old, told me that he had been suffering from persistent, severe right hip pain for approximately 3 months,” Dr. Newman recalled. “He said that his pain had reached the point that he couldn’t take it any more.
   
“I examined Mr. Rosen and determined that he suffered from avascular necrosis of both hips,” continued Dr. Newman. “I had a long and extensive discussion with him about his medical alternatives.
   
“I explained that his options were limited: he could live with his pain, get a full hip replacement, or get a bone graft to try to salvage the hip,” Dr. Newman continued. “Due to his young age of 29, I recommended that he first try to salvage the hip with bilateral bone grafting, and he agreed to the procedure.”
   
Unfortunately, the bone grafts failed. As a result, Mr. Rosen had to have a total replacement surgery on the right side 4 months later, and he underwent hip replacement surgery on the left side the following year.
   
In his subsequent malpractice suit against Dr. Newman, Mr. Rosen charged that Dr. Newman had not obtained his informed consent before the surgery.
   
“Dr. Newman told me about the risks of death and excessive bleeding,” Mr. Rosen testified. “He gave me pretty much the same routine that I had heard from other doctors before surgery.”
   
Dr. Newman responded that he had discussed all the material risks of the surgery with his patient.
   
“Mr. Rosen was informed that the grafts might fail and that, if they did, he would probably have to undergo hip replacements,” Dr. Newman stated. “I certainly discussed the likelihood of success with Mr. Rosen, even if I did not spell out the exact percentages.”
   
Mr. Rosen, however, insisted that he was never informed of the true odds of the recommended treatment.
   
“Despite what Dr. Newman is now claiming, there’s no indication in my medical records that he told me that the odds that the bone graft would succeed were so low,” Mr. Rosen maintained. “In fact, based on my discussions with Dr. Newman, I thought the bone graft surgery had about a 50% chance of success. If I had been informed of the true odds, I never would have bothered with the grafting procedure, which was simply a costly and painful postponement of the inevitable.”
   
Dr. Newman responded: “I discussed things with Mr. Rosen that are not in my records. Everything is not included in here.
   
“In any event,” continued Dr. Newman, “regardless of whether the odds were 20% or 50%, my recommendation to try the grafts was based on the premise that, being as young as he was, it was worth taking a chance, rather than going straight to a total joint replacement. Even if my disclosure of the odds is in question, there can be no dispute that a reasonable patient in Mr. Rosen’s position would have consented to the surgery, despite its low odds of success.”

The Result: Case dismissed, ruled the Louisiana Court of Appeal.
    To prevail on a claim for lack of informed consent, the patient must prove that: 1) the physician failed to meet the duty to inform, 2) the patient suffered an injury from a risk that was not disclosed, but should have been disclosed, and 3) if a reasonable patient had been adequately informed of this risk, he or she would have declined the treatment.
   
On the basis of all the testimony, Dr. Newman’s alleged failure to inform Mr. Rosen of the low percentage of success in bone grafts did not invalidate Mr. Rosen’s consent to the procedure. To show that his consent to the surgery was not valid, Mr. Rosen had to demonstrate that, if a reasonable patient in his position had been informed that the chance that the grafts would succeed was only 20%, he or she would not have consented to the procedure. It should be noted that the “reasonable patient” standard does not depend on a patient’s
self-serving testimony, made in hindsight, as to what he or she would have decided if all the risks had been disclosed.
   
In this case, Dr. Newman presented evidence that, had Mr. Rosen not tried the bone graft first, he still would have had to undergo the hip replacements due to the severe avascular necrosis of his hip joints. Under the circumstances, a reasonable patient in Mr. Rosen’s condition would have consented to the procedure, had the percentages of success or failure of bone grafts been disclosed.

(CaseLawStories™ 0208S02)(841 So. 2d 1009)

Comment: In general, to obtain informed consent, a physician must explain to the patient: 1) the nature of his or her ailment, 2) the nature of the proposed treatment and its alternatives, 3) the probability of success of the contemplated therapy and its alternatives, and 4) the risks of unfortunate consequences associated with the proposed treatment and its alternatives.
   
From a risk-management viewpoint, it is important that physicians take the time to make contemporaneous notations in the patient’s records that the patient has received information about each of the elements described above. Such documentation can be useful in corroborating the physician’s contention that the patient received all material information before consenting to a medical procedure.
   
However, neither the threat of a lawsuit nor its actual initiation should prompt a physician to alter medical records or the operative report. In addition to such actions being clearly unethical, most experienced plaintiffs’ attorneys are adept at detecting and proving that records have been altered. If a judge or jury finds out that records have been changed, a physician’s credibility is irreparably damaged. Adverse inferences are allowed, and punitive verdicts may result.

 Discuss On Sermo

The Story: "Even if it can be shown that Mr. Freeman’s vision problems are attributable to an insufficiently powered interocular lens (IOL), that alone does not prove negligence on my part," began Dr. Singer.  "Many calculations are used to determine the proper IOL strength."
   
In August, Jim Freeman was examined by Dr. Singer, an ophthalmologist, in preparation for cataract surgery.  The surgery was performed in September without complication and the left eye healed as expected.
   
Shortly after surgery, however, Mr. Freeman experienced problems with vision in his left eye. Dr. Singer referred him to Dr. Wescott at the Eye Center.
   
Dr. Wescott discovered that the IOL implanted by Dr. Singer was the wrong power and caused poor vision in the left eye.  "Mr. Freeman’s eye required an IOL power of 33 for adequate vision, not the 25 powered IOL that Dr. Singer implanted," explained Dr. Wescott.
   
Mr. Freeman brought a medical malpractice suit against Dr. Singer.  "As a result of improper IOL, my vision in my left eye is only 20/400," testified Mr. Freeman.

"The discrepancy between my vision in my right and left eyes is great, and causes problems. Reading is difficult, and so is watching movies in a big screen theater.  I can play golf only if someone will assist me in locating my balls."
   
At trial, there was no dispute that Mr. Freeman’s vision problems were attributable to the insufficiently powered IOL implanted in his left eye by Dr. Singer.  The question was whether a mistake of this type could occur in the absence of negligence.
   
"To determine the appropriate refractive power of an IOL for a particular patient, the physician takes certain measurements of the affected eye," stated the medical expert who testified on behalf of Mr. Freeman.
   
"Axial length measurements are taken with an ultrasound device," continued the expert.  "A probe is applied to the surface of the eye and readings are produced through ultrasound.  If the probe is not correctly applied, the ultrasound may produce inaccurate readings.  In my opinion, Dr. Singer obtained inaccurate measurements because of  human error.    
   
"As a protection against this type of human error, it is common practice to compare the left eye axial length with the axial length of the right eye," continued the expert.  "Dr. Singer did not do this."
   
"Also, the proper technique is to take a  series of measurements and then average them for use in the IOL formula," Mr. Freeman’s expert continued.  "Instead of this, Dr. Singer merely chose the longest measurement."
   
Mr. Freeman also presented evidence that Dr. Singer obtained inaccurate K readings.  "The flaw in the K readings was caused by the failure to instruct Mr. Freeman to remove his hard contact lenses sufficiently prior to his preoperative visit," testified the expert.  "Mr. Freeman was not instructed to remove his contact lenses until he arrived at Dr. Singer’s office. Thus, his eyes had insufficient time to return to  their original shape."
           
The Result: Dr. Singer is liable, ruled the Louisiana Court of Appeals.
   
To prevail in a medical malpractice action, the patient must prove three factors: 1) the standard of care ordinarily practiced by physicians within the defendant’s medical specialty; 2) that the doctor failed to use reasonable care and diligence along with his best judgment in the application of the skills of his specialty; and 3) that as a  proximate result of this lack of skill or care, the patient suffered injuries that would not otherwise have been incurred.           

The expert testimony established the appropriate standard of care for fitting a patient with an interocular lens. 

The expert testimony further disclosed three ways in which Dr. Singer failed to meet this standard: 1) he took an inaccurate axial length measurement due to human error, 2) he failed to take comparison measurements of the right eye, and 3) he took an inaccurate K reading due to his failure to instruct Mr. Freeman to remove his hard contact lenses sufficiently prior to preoperative measurements of the curvature of the eye.
   
The record further indicates that as a proximate cause of the inaccurate measurements, Dr. Singer implanted a 25 diopter IOL in Mr. Freeman’s left eye instead of a 33 diopter IOL which would have given him adequate vision. 
   
We therefore conclude that Mr. Freeman has satisfactorily proven the three elements necessary to establish liability in this case.

CaseLawStories^TM (550 So.2d 379)         
           
Comment: Mr. Freeman was awarded $50,000 in general damages.  The court noted that while the  vision in his left eye was 20/400, it was correctable with contact lenses. 
   
The court declined to make an award for lost wages. Rejecting Mr. Freeman’s claim that he had been forced to retire due to his vision problems, the court concluded that Mr. Freeman had simply chosen early retirement when it was offered to him after forty years with the company.

The Story: “Clotting is always a concern in patients undergoing coronary artery bypass graft surgery,” Dr. Linton explained. “Therefore, prior to Mr. Elliott’s surgery, we administered heparin.”

On April 15, John Elliott, a veteran, presented at a Veterans Administration (VA) hospital for the treatment of neck pain.

“While Mr. Elliott was hospitalized, his pain spread to his chest,” Dr. Linton continued. “We performed cardiac catheterization, which revealed coronary artery disease. On that same day, we administered heparin to Mr. Elliott to prepare him for coronary artery bypass graft surgery, which we performed on April 18.”

Mr. Elliott received a continuous heparin drip for 1 week. During that time, his limbs grew cold and black with gangrene, which was caused by the development of heparin-induced thrombocytopenia (HIT).

From April 17 to June 4, Mr. Elliott was heavily sedated and unconscious. On May 13, surgeons amputated his right leg above the knee because it had become gangrenous. On May 20, both of Mr. Elliott’s hands were amputated, and
2 days later his left leg below the knee was amputated because of gangrene.

“I regained consciousness on June 4,” Mr. Elliott recalled. “To my horror, I discovered that I was a quadruple amputee.

“The physicians told me that I had developed a heparin-induced allergic reaction that caused the gangrene, leaving them no choice but to amputate.”

Mr. Elliott was discharged from the hospital on July 23.

Almost 2 years later, in June, Mr. Elliott consulted with an attorney, who requested the patient’s medical records from the hospital. The attorney reviewed the records but declined to accept Mr. Elliott’s case.

In December, 6 months later, Mr. Elliott retained a new attorney, who promptly filed a complaint against the VA hospital pursuant to the Federal Torts Claims Act (FTCA).

“The physicians treating Mr. Elliott negligently failed to diagnose and treat his HIT, which resulted in the amputation of his legs and hands,” Mr. Elliott’s medical malpractice complaint charged.

The VA hospital attorneys argued that even if the VA physicians had been negligent, Mr. Elliott’s suit was time-barred by the FTCA’s 2-year statute of limitations.

“The FTCA requires that malpractice claims against government-operated hospitals be brought within 2 years of the date the action accrues,” the attorneys representing the VA hospital argued. “Mr. Elliott’s malpractice claim accrued, at the latest, on July 23—the date he was discharged from the hospital.

“By July 23, Mr. Elliott knew that he had been injured and that he was a quadruple amputee,” the VA hospital’s attorneys continued. “The VA physicians also had told Mr. Elliott that the amputation was a result of an allergic reaction to the heparin that had been administered in the hospital.”

Mr. Elliott’s attorneys responded that the 2-year statute of limitations should be considered tolled (ie, suspended) until the time that the first attorney had obtained and reviewed the patient’s hospital records.

“The VA physicians never told me that if my HIT had been diagnosed in a timely fashion, it could have been treated and arrested with anticoagulants,” Mr. Elliott insisted.

“I was simply told that my injuries were caused by an unforeseeable allergic reaction to the heparin. My attorney was the first person to inform me that I lost my limbs because of medical malpractice.”

The Result: More facts are needed to determine when the 2-year statute of limitations began, ruled the United States Court of Appeals.

In a medical malpractice action brought pursuant to the FTCA, the statute of limitations is tolled until a patient possesses facts that would enable a reasonable person to discover the alleged malpractice.

Mr. Elliott has alleged that his injuries did not occur solely because of the heparin-induced reaction, which could have been halted, but because the VA physicians failed to diagnose and treat his allergic reaction. Therefore, in this case, the issue of accrual depends on when Mr. Elliott discovered, or through the exercise of reasonable diligence should have discovered, that the failure of his physicians to diagnose and treat the allergic reaction led to his deteriorating condition.

Specifically, the court needs additional facts to determine when Mr. Elliott learned, or should have learned, that the VA physicians could have treated him with anticoagulants that would have arrested the HIT and saved his limbs, but failed to do so.

(CaseLawStories^TM 0406001)(263 F.3d 272)

Comment: Patients do not have an unlimited amount of time in which to sue for medical malpractice. A patient’s right to sue is restricted by “statutes of limitations,” which generally range from 2 to 3 years. Each state, as well as the United States government, has its own statute of limitations governing malpractice suits.

In many states, the statute of limitations begins to run at the time of a physician’s alleged malpractice, regardless of when a patient discovers, or reasonably should have discovered, the alleged negligence.

In other states, as well as in medical malpractice claims brought against the United States government, the statute of limitations does not begin to run until a patient discovers, or in the exercise of reasonable diligence should have discovered, the malpractice.

In jurisdictions that apply a “discovery rule” to their statutes of limitations, there is a great deal of litigation regarding what constitutes “reasonable diligence” in discovering that medical malpractice was the cause of a patient’s injury.

Louis M. Guzzi, MD, FCCM
Attending and Section Chief, Critical Care Medicine
JLR Medical Group
Associate Professor of Anesthesia, Florida State University
Florida Hospital, Orlando, Florida

As increasing numbers of individuals have complicated vascular, cardiac, and invasive procedures performed, it is estimated that 12 million patients receive approximately 1 trillion units of heparin each year. As the practice of medicine becomes more and more complex, practitioners can be expected to be confronted with the possibility of providing heparin therapy to a patient who may have had prior exposure and may have experienced the near catastrophic and paradoxical response of unhindered coagulation.

The recognition of HIT revolves around vigilance, identification of platelet trends, and clinical suspicion. Any member of a patient’s health care team should be able to recognize HIT. The importance of identifying the disorder lies in making the correct diagnosis and then responding to those cases that require anticoagulation with appropriate therapy.

The triad of HIT identification includes a >30% decrease in platelet count from baseline, the onset of unexplained new thromboembolism, and the extension of thrombus on therapy or acute thrombus following prior exposure to heparin products. The essence of therapy is the immediate discontinuation of heparin products, the initiation of alternative anticoagulation therapy with a direct thrombin inhibitor (DTI), and, most importantly, for treatment not to be delayed while awaiting confirmation of laboratory results.

Given our current understanding of HIT as a disease process, the physician should be expected not only to be able to recognize HIT, but also to initiate therapy quickly. It would be reasonable to expect that in high-risk individuals who are required to receive acute anticoagulation therapy because of acute thrombosis, in the event of a low platelet count, a DTI may be initiated. This should be expected to be the standard of care, as the same end point is achieved and adequate inhibition of thrombosis is attained.

The recognition and treatment of the paradoxical process of thrombosis on active anticoagulation may become increasingly more common among medical practitioners. This may lead to significant litigation, as the end point of unchecked thrombosis might result in venous, arterial, or limb thrombosis, with serious consequences. The risk exists in any patient who previously has been exposed to a heparin-like product. Practitioners need to become more wary of using older types of high-risk therapy.

The Story:

“Mr. Thornton was never a patient of mine,” began Dr. Wallace. “How can his family sue me for malpractice?”

On May 23, Dr. Wallace administered various immunizations and vaccinations to his patient, Roger Grant. After he was vaccinated and before he left Dr. Wallace’s office, Mr. Grant lost consciousness twice.

Sometime thereafter, Mr. Grant left Dr. Wallace’s office and started driving home. However, he lost consciousness once again, lost control of his car, and crashed into an automobile parked at the side of the road.

“My husband was working underneath that parked car,” Mrs. Thornton testified, “and was crushed.” Mr. Thornton suffered severe injuries, causing his death. Mrs. Thornton subsequently filed a medical malpractice claim against Dr. Wallace.

The complaint charged, “Dr. Wallace was negligent in failing to warn his patient, Roger Grant, of the dangers of driving after receiving vaccinations. That negligence caused Mr. Thornton’s death.”

Dr. Wallace’s attorney asked the court to dismiss the case. “Doctors do not owe a duty of care to an unknown nonpatient who is injured by the physician’s treatment of a patient,” Dr. Wallace’s attorney argued.

The Result:

Case dismissed, ruled the Indiana Court of Appeals, holding that Dr. Wallace did not owe a duty of care to Mr. Thornton.

Three factors must be balanced to determine whether Dr. Wallace owes a duty of care to Mr. Thornton: (1) the relationship between Dr. Wallace and Mr. Thornton; (2) the reasonable foreseeability of harm to Mr. Thornton; and (3) public policy concerns.

In this case, there was no special relationship between Dr. Wallace and Mr. Thornton that created a duty on the part of Dr. Wallace. The two were unknown to one another before the accident.

Further, there was no evidence to suggest that it was foreseeable that Dr. Wallace’s conduct would cause harm to Mr. Thornton. There have been no allegations that the particular injections Mr. Grant received were likely to cause loss of consciousness, or in fact caused him to lose consciousness.

Finally, public policy considerations weigh against the imposition of a duty in this case. The social utility derived from vaccinations and immunizations clearly outweighs the risk of harm to third parties. All individuals should receive vaccinations and immunizations to protect their own health as well as society’s health. Imposing a duty on doctors like Dr. Wallace would discourage physicians from vaccinating and immunizing patients for fear that the physicians would be liable for subsequent injuries to third persons. Thus, physicians would be forced to weigh the welfare of unknown third persons against the welfare of their patients. (662 N.E.2d 678)

Comment:

In general, an injured person must have a physician-patient relationship with a doctor in order to sue for medical malpractice. However, there have been a few cases in which physicians have been held liable for automobile accidents caused by their patients. These have arisen in one of three situations: (1) the doctor created a dangerous medical condition and failed to warn an unknowing patient, as, for example, by prescribing drugs that cause drowsiness; (2) the doctor failed to warn an unknowing patient of a physical condition likely to result in an accident; and (3) the doctor advised a patient to operate an automobile when the patient’s condition made it dangerous to drive.

Query:

Are you aware of any vaccinations or immunizations that can cause drowsiness or loss of consciousness in a patient? Do you have concerns about a patient’s driving a car after receiving a vaccination?

The Story: “Mrs. Wesley’s left ovary had stopped producing eggs,” began Dr. Rollin. “Its removal had no effect on her fertility.”

Dr. Rollin, a gynecologist, examined Sheila Wesley on November 13. “She had complained of abdominal pain on her left side,” Dr. Rollin testified, “and I ordered a sonogram.”

At Mrs. Wesley’s next visit, on December 2, Dr. Rollin told her that the sonogram had revealed a mass on the left side. “I explained that the mass could be an endometrioma, a follicular cyst, a benign ovarian tumor, or ovarian cancer. I told her that we needed to perform a laparoscopy.”

Mrs. Wesley and Dr. Rollin had different recollections of their discussion of the risks and complications of the laparoscopy.

Mrs. Wesley stated, “Dr. Rollin told me that I might need a laparotomy as well as the laparoscopy, but he didn’t advise me that I might need additional procedures.”

Dr. Rollin said, “I discussed all of the risks of surgery with Mrs. Wesley. Although I don’t remember precisely what I told her, it’s my practice to advise all of my patients that if I find cancer in an ovary during the surgery, I will perform a complete hysterectomy and remove both ovaries.”

At the end of the December 2 appointment, Mrs. Wesley signed a consent form listing only one procedure, laparoscopy. The consent form included the following general paragraph: “I understand that the laparoscopy as well as other complications sometimes require additional procedures or operations. I consent to such additional procedures if my physician feels they are necessary.”

On January 3, Mrs. Wesley had a third office visit with Dr. Rollin. “Dr. Rollin told me that if my tumor could not be drained, he planned to do a laparotomy and remove the tumor,” Mrs. Wesley testified. “But he didn’t discuss any other procedures that might be needed if he discovered cancer. He never warned me about infertility.”

Surgery was performed on January 30. “After making an incision into Mrs. Wesley’s abdominal cavity, I found a large endometrioma involving the entire left ovary,” Dr. Rollin testified. “To remove the mass, I had to remove the left ovary and fallopian tube.”

Without checking to see whether Mrs. Wesley’s right ovary was intact, Dr. Rollin removed her left ovary. Unfortunately, her right ovary had degenerated because of prior emergency surgery to remove a ruptured ovarian cyst.

When Mrs. Wesley learned that she had lost all ovarian function, she sued Dr. Rollin for negligence and for operating without her informed consent.

“I would never have consented to the surgery,” Mrs. Wesley claimed, “if Dr. Rollin had informed me that I might be rendered sterile. In addition, Dr. Rollin performed the procedure negligently. He should have inspected the right ovary before removing the left ovary and fallopian tube, and he should have tried to drain the tumor on the left ovary before removing it.”

At the conclusion of the trial, the jury returned a verdict in favor of Mrs. Wesley on both claims, that Dr. Rollin had acted negligently and that he had failed to obtain her informed consent. Dr. Rollin appealed.

“The verdict is against the weight of the evidence,” argued Dr. Rollin’s attorney. “There was a possibility that the tumor was malignant. Thus, Mrs. Wesley’s assertion that she would not have consented to the surgery had she been informed of the risk of infertility or the loss of hormone function is unreasonable.

“Moreover,” the attorney continued, “the jury apparently ignored expert testimony that Mrs. Wesley’s left ovary had stopped releasing eggs before she underwent surgery. Thus, removal of the ovary did not change her fertility. Dr. Rollin’s experts also testified that it would have been impossible for Dr. Rollin to remove the cyst without removing the entire left ovary.”

The Result: Pay up, ruled the Rhode Island Supreme Court, affirming the jury’s verdict.

The evidence on the issue of informed consent raised a question for the jury. We believe that Mrs. Wesley presented sufficient evidence for a jury to find that she had not given informed consent to the removal of her left ovary.

We also think that Mrs. Wesley presented credible evidence that Dr. Rollin was negligent, and that his negligence caused her injuries. All the experts, including Dr. Rollin’s experts, agreed that Dr. Rollin had deviated from the standard of care by failing to inspect the right ovary before removing Mrs. Wesley’s left ovary and fallopian tube.

Expert testimony regarding the medical treatment was conflicting. Mrs. Wesley’s expert testified that Dr. Rollin had deviated from the standard of care because he had not attempted to drain the tumor before removing it. The expert also testified that, because Mrs. Wesley had monthly periods prior to surgery, she was ovulatory and fertile.

Dr. Rollin’s expert responded that the left ovary, which Dr. Rollin removed, had not released eggs for at least six months prior to surgery and would have been incapable of releasing eggs in the future. He also testified that it would have been impossible to remove the cyst without removing the entire left ovary.

Implicit in the jury’s verdict is their acceptance of the testimony of certain witnesses and their rejection of the testimony of others. The jury apparently relied on the testimony of Mrs. Wesley’s expert that Dr. Rollin’s negligence caused Mrs. Wesley’s loss of ovarian function. The court will not disturb the jury’s verdict.

CaseLawStories^TM(099501OB/GYN)(674 A.2d 401)

Comment: Before performing a surgical procedure, physicians are required to obtain a patient’s informed consent. In general, to obtain informed consent, a physician must explain to the patient the nature of his or her ailment, the nature of the proposed treatment, the probability of success of the contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment.

To recover under the informed consent doctrine, the patient must prove: (1) that the physician failed to meet the duty to inform; (2) that the patient suffered injury from a risk that was not disclosed but should have been disclosed; and (3) that if a reasonable patient had been adequately informed of this risk, he or she would have declined the treatment. (In a few states, it is sufficient to show that the patient bringing the suit would have declined the treatment.)

Under the informed consent doctrine, it is not necessary to show that the injury resulted from negligence in performing the medical procedure. The patient is merely required to show that the injury was an undisclosed risk of a procedure to which informed consent had not been given.

Presurgical discussions are important not only to obtain informed consent but also to establish better physician-patient relationships. Patients are less likely to blame physicians who inform them before the fact of possible complications of medical procedures.

Query: How do you document your presurgical discussions with your patients? Share your experiences with your
colleagues in our interactive Peer Review column. Write: The Editor, CaseLawStories, P.O. Box 428, Greenport, NY 11944. E-mail: info@CaseLawStories.com

The Story: “As soon as Mrs. Wiley reported the incident, our nurses took her to the emergency room,” began Elise Parker, the risk manager for Central Hospital. “The HIV test that they administered came back negative for any HIV antibodies.”

On June 21, Sarah Wiley visited her terminally ill sister, a patient in the intensive care unit of Central Hospital. “I applied some lotion to my sister’s skin,” explained Mrs. Wiley. “I then washed my hands and reached for a paper towel from the container located on the wall.

“The towels appeared to be stuck,” continued Mrs. Wiley. “So I lifted the top of the container and reached inside. That’s when three of my fingers were pricked by sharp objects.

“Then a nurse came in,” Mrs. Wiley continued. “She told me that the container wasn’t a paper towel holder. It was where the nurses put their contaminated needles!”

Mrs. Wiley immediately became fearful of contracting AIDS from the punctures. She was taken to the emergency room, where a blood sample was taken to determine if she had been exposed to any diseases, including HIV.

“We also arranged to have Mrs. Wiley examined by an epidemiologist who served as the infectious disease control doctor at our hospital,” testified risk manager Parker. “He advised Mrs. Wiley to report the incident to her family doctor to obtain follow-up treatment for her injuries.”

After the accident, Mrs. Wiley was retested on five occasions over a three-year period. None of the tests revealed any HIV antibodies.

Nevertheless, Mrs. Wiley instituted a negligence suit against Central Hospital, seeking damages for negligent infliction of emotional distress. “As a result of the incident, Mrs. Wiley has suffered from great anxiety, fear, and emotional distress that she may contract AIDS,” her complaint charged.

“Central Hospital was negligent in placing a contaminated needle container, which resembled a paper towel dispenser, closer to the sink than the actual dispenser,” Mrs. Wiley’s complaint continued. “Moreover, the hospital was negligent in failing to attach appropriate warning labels to the container.”

“We deeply regret what happened to Mrs. Wiley,” responded Mrs. Parker. “But let’s be realistic. There’s no proof whatsoever that Mrs. Wiley was ever exposed to HIV as a result of the incident. In fact, the initial test in the emergency room, as well as the five subsequent tests taken by Mrs. Wiley, suggest just the opposite.”

The Result: The hospital is not liable, ruled the Tennessee Supreme Court, granting the hospital’s motion for summary judgment.

In order to recover emotional damages based on the fear of contracting AIDS, the plaintiff must prove, at a minimum, that he or she was actually exposed to HIV. And even assuming that the plaintiff was actually exposed to HIV, liability will follow only to the extent that the resulting emotional distress was within the range of that which would be experienced by an ordinary, reasonable person under the circumstances. Moreover, any damages recoverable for emotional distress will be confined to the time between discovery of the exposure and the negative medical diagnosis or other information that puts to rest the fear of injury.

Because Mrs. Wiley has tested negative for the presence of HIV antibodies and has admitted that she cannot prove
that the needles that pricked her were contaminated with HIV, her claim is insufficient as a matter of law. (868 S.W.2d 585)

Comment: Emotional distress suits based on fear of having contracted the AIDS virus are a new area for the courts. Of the states that have considered the issue, a slight majority, including West Virginia, Pennsylvania, Idaho, and New York, have held, like Tennessee, that actual exposure to HIV is required in order to recover for fear of contracting AIDS.

Other states, however, have ruled that actual exposure to the disease-causing agent is not required to establish a case for emotional damages. These states generally require only that the plaintiff’s fear be reasonable.

Query: What is your opinion of the needle disposal system used by Central Hospital? What steps are taken in your hospital to avoid this type of injury? Share your opinions with your colleagues.