50 Shades of Malpractice

Mark Crane


February 27, 2017

In This Article

Make Sure You Communicate With Staff; What If the Doctor Is Injured?

North Carolina

Make sure you and your nurse or medical staff members are on the same page. Miscommunication between an ophthalmologist and a nurse during cataract surgery resulted in an injury that left the patient blind in his left eye.

A Durham jury last year found that the ophthalmologist and North Carolina Specialty Hospital were negligent for using the wrong drug during the 2008 operation. It rendered a verdict awarding $1.5 million to the patient, according to a report in the Herald-Sun.

The patient had alleged that Dr Timothy Young ordered a dye called VisionBlue® (Dutch Ophthalmic; Exeter, New Hampshire) to stain the cataract. But the nurse brought the wrong drug—methylene blue, which is toxic to the eye. The nurse testified that she announced the drug's name as she handed it to a surgical technician, who also said she announced the drug. Dr Young testified that he never heard that.

The drug caused severe injuries. A second operation failed to correct the injury, and the patient's body rejected a full corneal transplant.

North Dakota

Do doctors owe a duty to patients they've never met? That was the key question in a case decided by the North Dakota Supreme Court in 2014.

Herman Johnson experienced confusion and swelling of his legs and calves in December 2012. His daughter called the Mid Dakota Clinic, a 60-physician group, and was given an appointment for that afternoon with internist Donald Grenz. Johnson and his daughter arrived 7 minutes late and were told that Dr Grenz couldn't see them, but they could reschedule for another day or go to the hospital ED or nearby walk-in clinic.

Shortly after leaving the clinic, Johnson fell and hit his head, suffering a laceration on his forehead. He returned to the clinic, where a nurse assisted him until an ambulance arrived. He was hospitalized, had episodes of respiratory arrest, and died a week later, the court's opinion said.

The family sued Mid Dakota, alleging that the policy of not seeing patients who arrive more than 5 minutes late for appointments was a breach of the duty the clinic owed to Johnson, and that his fall was a foreseeable event proximately caused by the refusal to treat him. An expert witness testified in a deposition that a "reasonable" clinic would not have refused to see a patient who was only 7 minutes late, and the patient should have been evaluated to see whether he needed immediate treatment.

A trial judge dismissed the lawsuit, and found that scheduling an appointment with a doctor does not establish a legal duty to treat the patient and does not establish a physician/patient relationship necessary to maintain a malpractice claim. The Supreme Court agreed, rejecting Johnson's argument that the clinic should have foreseen that he may fall and sustain an injury. "This argument imposes an unreasonable level of prescience on the clinic. Mr Johnson's unfortunate trip and fall and subsequent passing were not causally connected to the clinic's refusal to see him."


It's rare that a physician becomes injured during the course of operating on a patient—and even rarer that he then sues the clinic and physician who tried to repair the damage. Neurosurgeon Dr Xiao Di may be one of the unluckiest doctors in Ohio. But at least a $7.7 million award will compensate him for the career-ending injuries he sustained.

The doctor who worked at the Cleveland Clinic was performing surgery in February 2010, when it appeared that bone chips went into his left eye, according to a report on the Cleveland Plain Dealer. About 1 year later, he had surgery at the clinic to repair the damage.

During the procedure, a hole was torn in Dr Di's iris, his attorney said. His left pupil was destroyed. Because of the injuries, Dr Di cannot perform surgery and has not worked since then, the attorney said.

After a trial that lasted nearly 3 weeks, a Cuyahoga County jury last year awarded him $7.7 million in a malpractice verdict, including money for lost prior and future wages.

Six of eight jurors voted in favor of the verdict. That's permissible under Ohio law.


Make sure you communicate and document your intentions, and that other health professionals involve are aware of your instructions.

A patient was diagnosed in 2006 with invasive ductal carcinoma of the left breast. She elected to have a mastectomy and reconstruction. She was given antibiotics, including cefadroxil, although she had no clinical indications of an infection at the surgical site, according to her attorney Jacob Diesselhorst.

As a result of the cefadroxil, she developed Clostridium difficile colitis, her lawsuit alleged. She went to a cancer care center and told an oncologist that she was taking metronidazole for the C difficile infection. The oncologist told other employees not to start chemotherapy until the infection cleared. However, his order was not properly charted and documented. Other doctors started chemotherapy without checking on the patient's C difficile status.

The woman's cancer treatment had to be delayed, and she needed eight additional surgeries on her colon, the attorney said. She still has severe pain and long-term disability. The defendant doctors and cancer care center said that they met the standard of care and the patient's injuries were caused by the "natural sequelae and complications from necessary procedures following the diagnosis of her condition."

In 2011, a jury awarded the patient $4.5 million.


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