50 Shades of Malpractice

Mark Crane


February 27, 2017

In This Article

Missed a Small but Key Step; Loss of Chance


Failure to add a patient's name to a list resulted in a tragic situation and a huge malpractice award.

A jury awarded $35.4 million to a Walpole woman who is paralyzed from a stroke she suffered hours after she gave birth, according to a May 7, 2015 report in the Boston Globe.

Andrea Larkin, 35, experienced dizzy spells in 2004 after running the Boston Marathon. MRI and CT showed brain abnormalities. That meant her internist was required to place Larkin in a database of patients with certain medical conditions that other doctors can access, said her attorney Benjamin Novotny.

However, Larkin's physician failed to add her name to the list. When Larkin became pregnant 4 years later, her obstetrician was not aware of her brain issues. Had that doctor known of Larkin's problems, a cesarean section would have been ordered because it was dangerous for her to be in labor, according to Novotny.

The defendants were Dedham Medical Associates, a large multispecialty group practice, and the internist.

Larkin delivered her daughter without having a cesarean section, Novotny said, and had a massive stroke that left her almost completely paralyzed hours after the birth. "She requires 24-hour care for pretty much everything," Novotny said of his client, a former teacher at the Foxborough Regional Charter School. The Larkins have been paying about $200,000 a year out of pocket for Andrea Larkin's care.


It's important to recognize when a condition requires the expertise of a specialist. Complications from a "tummy tuck" led to a $1.3 million award last year for a Michigan woman.

Kathie Pagan was 39 in 2009 when she underwent an elective abdominoplasty, which included liposuction of the abdominal flap, at the office of plastic surgeon Dr Rouchdi Rifai, according to a report by the website Mlive.com. She soon experienced dark-colored drainage, clots, and painful burning sensations, according to her complaint.

Dr Rifai cleaned the wound area and prescribed ointment and pain medication. He did not refer her to a wound care specialist as she'd repeatedly requested, even after the wound became infected, the complaint said. Two months after the surgery, she was hospitalized for 6 days because of a Staphylococcus infection. For some time after, she continues to receive treatment for a gaping stomach wound that has never entirely healed.

The trial lasted 10 days. Jurors found that the doctor had breached his duty of care, causing Pagan's injuries and physical and economic losses.


Doctors may be liable for a patient's "loss of chance" at recovery. A patient in Minnesota may sue physicians not only for negligent acts that cause an injury, but also for loss of chance of a favorable outcome in the future. In a 3-2 ruling, the Minnesota Supreme Court in 2013 joined 22 other states in allowing patients to sue in these circumstances.

The case involved a girl who had had a suspicious lump on her body since birth, according to a report in the Minneapolis Star Tribune. A year went by until the lump was determined to be alveolar rhabdomyosarcoma, a rare and aggressive cancer. Her parents sued their family physician, alleging that he didn't properly diagnose the cancer before it spread to other parts of the child's body and that his delay in diagnosis reduced her chances of survival.

A trial judge dismissed the suit because a "reduced-chance" lawsuit wasn't recognized in Minnesota. The state's high court, however, found that a patient's chance to survive or recover is something of value and, if taken away, should be regarded as an injury. It reinstated the lawsuit. The child died a few months after that ruling, at age 7 years.

An attorney for the state's hospital association and medical society said that the ruling is "troubling" because it lowers the bar for doctors to be held liable on hypothetical situations, and will probably encourage cases that law firms previously turned away.


Should the physician have asked the mother to bring the child to the hospital immediately? Yes, according to a judge.

Delays caused by giving advice over the telephone rather than asking the patient to return to the hospital caused doctors to miss a case of bacterial meningitis that led to a child's death, a judge ruled.

A 10-year old girl who was in pain and had a fever of 102°F was seen at the hospital ED. A physician diagnosed an ear infection and prescribed antibiotics and ear drops.

Later that night, the child seemed worse and vomited several times. Her mother called the hospital twice and was told to keep giving her antibiotics. The next morning, the child collapsed and was taken back to the ED. She stopped breathing, was placed on a ventilator, and died 3 days later.

A judge who heard the case without a jury found that signs of meningitis were present when the mother called and the child should have been seen as soon as possible. If the hospital had instructed the mother to bring the child back to the hospital, she would have been properly diagnosed and treated and would have survived, the judge ruled. He awarded the family $500,000.


Comments on Medscape are moderated and should be professional in tone and on topic. You must declare any conflicts of interest related to your comments and responses. Please see our Commenting Guide for further information. We reserve the right to remove posts at our sole discretion.