50 Shades of Malpractice

Mark Crane

Disclosures

February 27, 2017

In This Article

View With Your Own Eyes; Watch Out for Drug Interactions

New Hampshire

Primary care doctors should look at the radiographic tests they order instead of merely relying on the radiologist's report.

A patient saw a family physician for gastrointestinal problems. The doctor ordered CT of the colon, and the radiologist reported no abnormalities. Over the next 3 years, the patient continued to experience abdominal pain and was seen at hospital EDs many times.

Finally, a new CT scan was performed by a different radiologist. It showed the patient had an intussception of the intestine. The second radiologist checked the earlier scan and found that this condition had been present then, but the first radiologist had missed it.

The patient underwent open surgery and had a difficult recovery. If the intussception had been discovered earlier, he could have had a less invasive laparoscopic procedure, said attorney Paul Mangione in a telephone interview. The patient was left with a large painful scar and still has gastrointestinal discomfort.

The patient filed suit against the first radiologist and family physician, who should have ordered the second CT scan earlier, while his symptoms persisted. "The family physician could have looked at the scan himself instead of relying on the radiologist. You don't need training in radiology to spot this. Doctors should look at the films they order," said Mangione.

The case ended in a confidential settlement for an undisclosed but significant amount, he said.

New Jersey

When a patient is given several different drugs, drug interactions pose a common risk. It's imperative to be extra-careful about potentially lethal drug interactions.

A 35-year-old man went to a hospital ED in severe pain and was diagnosed as having an acute diverticulitis attack. Physicians gave him an antibiotic and intravenous hydromorphone hydrochloride (Dilaudid®) before discharging him.

Two months later, the patient returned with the same complaint. There was some concern that he may have had a perforation of the intestine, said his attorney, Heidi Villari of the Beasley Firm in Philadelphia, in a telephone interview. While doctors performed tests, they again gave him the potent painkiller both intravenously and later intramuscularly. But physicians also gave him alprazolam (Xanax®).

"There was an overload of the Dilaudid. Adding alprazolam had depressed his respiratory function," she said. "He was found unconscious, couldn't be resuscitated, and died."

The patient's parents sued the doctors and hospital and received a settlement of $795,000. New Jersey case law severely limited the award in this case. "Because he was unconscious because of the Dilaudid, it's harder to prove he had conscious pain and suffering," said Villari. "Because he was a single man with no dependents, the jury can't even consider his future loss of earnings. If this case was tried in Pennsylvania and many other states, any award or settlement would have been in the millions of dollars."

New Mexico

Basic communication and common sense should not require an expert testimony. That's one of the lessons of this case regarding delay in diagnosis of colon cancer.

Poor communication between a radiologist and surgeon may have led to a 14-month delay in diagnosing a patient's colon cancer, the New Mexico Supreme Court ruled in 2014.

A trial judge initially dismissed the lawsuit against St Vincent Hospital because the plaintiff didn't specifically plead that the hospital was liable for the failure of a contract radiologist to communicate a possible cancer diagnosis to the ED doctor. The hospital also alleged that the plaintiff didn't submit expert testimony in support of his claim.

In 2002, the radiologist concluded the patient had a diverticular abscess. The surgeon testified at a deposition that she never received a report noting a secondary neoplasm diagnosis. If she had, she "would have tried to do whatever she could to get ahold of the patient," who left the hospital and didn't return for a follow-up visit. In 2006, the patient sued the hospital because the radiology report wasn't forwarded to the surgeon and the abscess was treated with antibiotics, "allowing the neoplasm to grow."

The Supreme Court reinstated the case and ordered a new trial. There was enough evidence for a jury to decide whether the hospital was liable for the actions of the radiologist, it held, also finding the trial judge was wrong to demand expert testimony. "Communication between medical personnel is not a matter that requires expert knowledge to understand the standard of care involved... A reasonable patient understand that the radiologist who processes X-rays needs to communicate the results to the treating physician. Basic human communication, even between doctors, is not so far from common knowledge that it requires an expert's testimony."

New York

This case is a lesson in how a malpractice suit can continue through additional trials, and how each trial's results can be different from the last.

In a surprise reversal of fortune, one of the nation's top plaintiffs' attorneys turned down an $8 million settlement offer in a malpractice suit—then the jury in 2009 found for the defendants. But the attorney tried the case two more times and finally won.

The attorney had alleged that negligence by an obstetrician and a hospital left a child with cerebral palsy.

Thomas A. Moore, whose law firm has won more than 120 verdicts each over $1 million, appealed the case. A second trial resulted in a mistrial, but the third time was the charm. A Suffolk County jury in 2013 awarded the child and her family $130 million, the second-highest personal injury verdict in New York history.

The child was born with severe brain damage. Moore convinced the jury that a nurse at St Charles Hospital in Port Jefferson failed to notice that the girl was deprived of oxygen at birth and that other mistakes were made during the delivery. The child cannot walk or speak and needs almost constant medical care. "Had the nursing team communicated with the obstetrician just 15 minutes sooner—and delivered the baby—this terrible tragedy could have been avoided," Moore told reporters.

The obstetrician, who was cleared by the first jury, was dropped from the subsequent lawsuits. A state appeal court in 2013 upheld the verdict against the hospital but reduced the award to $11 million.

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