50 Shades of Malpractice

Mark Crane


February 27, 2017

In This Article

Standard of Care; Jury Sympathy for Plaintiff


Adverse outcomes occur even when physicians follow the standard of care. In cases of high exposure, doctors and their insurers and attorneys must decide whether to defend the case or take the risk for a multimillion-dollar verdict because of jury sympathy for the patient.

That's what happened to Los Angeles ED physician Dr Malkeet Gupta. A young woman who was 26 weeks pregnant presented to his ED with symptoms of simple cystitis. He did a thorough exam and sent her home with an antibiotic and instructions to follow up with her obstetrician. "Unfortunately, she came back the next day in preterm labor and delivered a baby who was severely impaired and requires long-term care," he said.

The patient's lawsuit alleged that she should have been monitored at the hospital for early signs of labor. "This case had an exposure of more than $10 million because of the baby's condition and the natural sympathy jurors would feel," said attorney James Schaeffer.

Dr Gupta wanted to clear his name. At trial, he was an excellent witness—compassionate and knowledgeable, said Schaeffer. "We also brought in the best expert witnesses we could find in emergency medicine and obstetrics."

The jury in 2013 found for Dr Gupta. The Doctors Company, the nation's largest medical liability insurer, recently featured him on a video on its website, describing the legal process and the emotional upheaval he felt at being sued.


A patient's own behavior can legally be considered partially responsible for a bad outcome from a procedure. In this case, a patient's cocaine use led to a defense verdict for an interventional radiologist and internist.

A patient went to a hospital ED for abdominal pain. Tests disclosed a cyst on his liver. An internist took his medical history and admitted him for a needle biopsy. The following day, shortly after an interventional radiologist pierced the cyst, the patient had a severe allergic reaction, went into cardiac arrest, and stopped breathing, according to a report from the American Medical Association. Before he could be revived, he suffered permanent brain injury. Doctors didn't know what caused the allergic reaction.

About 2 weeks after this incident, the patient's former girlfriend contacted the radiologist and told him that the patient had used cocaine recreationally, including around the time of his ED visit. The patient's legal guardian sued both doctors, alleging that the internist was negligent for not ordering further tests or consulting a specialist. The radiologist was negligent for failing to consider the cause of the cyst and performing the biopsy without taking precautions against an allergic reaction, the suit alleged.

At trial, defense experts testified that cocaine use is a known cause of cardiac arrest and was the most likely explanation for the patient's injuries. The jury found for the doctors. The guardian appealed, arguing that the trial judge shouldn't have allowed testimony about the cocaine use. An appeals court agreed and ordered a new trial.

The Colorado Supreme Court last year reversed that decision and ruled for the doctors. The court held that evidence used to make a medical diagnosis is admissible even if the diagnosis doesn't lead to a decision regarding treatment. Thus, the patient was at least partially responsible for the medical outcome that resulted from his own behavior.


No excuses if a medical resident makes a mistake—the attending assumes full responsibility for the resident's patient care.

A 65-year-old woman whose colon was punctured during a routine hernia operation was awarded $12 million last year in a jury verdict.

The patient sued Danbury Hospital and two doctors who performed the operation, according to a report in InsuranceJournal.com. She testified that the surgical mistake caused her to be in a month-long coma, led to a massive abdominal infection and multiple other surgeries, and resulted in the loss of most of her large intestine.

The doctors didn't discover the puncture until after they had closed the wound and the patient went into septic shock. The plaintiff's attorney argued that a surgical resident had perforated the colon. He denied that and said the puncture was caused by the attending surgeon, who settled the malpractice case for an undisclosed amount before the trial.

Hospital attorneys argued that the hospital wasn't responsible for the acts of a surgical resident and the attending was responsible.


A former schoolteacher went to a plastic surgeon complaining of an achy left knee and tingling in her toes at night. The surgeon, who advertises that he specializes in procedures on legs and feet to relieve nerve compression, performed multiple procedures on her left leg in 2010.

The patient was left in severe pain. Physicians at Johns Hopkins Medical Center later diagnosed her with complex regional pain syndrome and ordered new treatments. But the pain persisted, her lawsuit alleged.

The plaintiff's expert witnesses testified that the surgeon should have offered the patient nonsurgical options, such as physical therapy, and that diagnostic tests hadn't demonstrated that she had surgically correctable nerve problems, according to a report in the Wilmington News Journal. The surgeon testified at trial that he met the standard of care and that he didn't cause the injuries she alleged.

A jury last December found for the plaintiff and awarded her $3.4 million.


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