News: An 18-year-old woman was admitted to a hospital for an asthma attack. At the hospital, she experienced numbness and pain in her leg, and her physicians consulted a vascular surgeon via telephone. Tests revealed a blood clot in the leg, but the vascular surgeon recommended the patient be discharged. He also recommended she come into his office three days later for a follow-up. The patient’s condition deteriorated so drastically within those three days that part of her leg had to be amputated. The patient filed suit against the hospital, her primary physicians, and the vascular surgeon. The five-week trial resulted in a $25 million verdict against the surgeon.

Background: In November 2009, an 18-year-old woman was admitted to a hospital following an asthma attack. While undergoing treatment for her asthma attack, the patient informed physicians of pain and numbness in her left leg. Subsequent tests revealed a blood clot in her leg. The hospital contacted an on-call vascular surgeon for advice.

Allegedly, there was miscommunication between the vascular surgeon and another physician at the hospital regarding the physician’s two-part report. The vascular surgeon ordered additional testing, but ultimately concluded, and communicated to the hospital via telephone, that the patient ought to be sent home. He told the patient to come to his office three days later for a follow-up visit. In the ensuing days, the patient’s condition worsened and her left leg eventually was amputated below the knee.

The plaintiff filed suit against the hospital, her primary physicians, and the vascular surgeon. The hospital and primary physicians settled with the patient before the trial began against the vascular surgeon. The surgeon’s motion for summary judgment was denied by the trial judge because a genuine issue of material fact existed as to whether there was a causal connection between the surgeon’s communication and the later injury. The trial lasted five weeks, during which time the jury was given “a window into what it is like to be a 25-year-old amputee.”

The patient’s attorney argued that the surgeon should have indicated the patient required immediate care to avoid future injury. Thus, she contended, it was unsafe for the patient to be released.

A point of contention between the parties existed regarding the formation of a doctor-patient relationship through the phone call. The plaintiff’s attorney argued that because ED physicians are generalists, the expertise of the specialist plays an important role in the care of a patient, lending itself to the formation of a doctor-patient relationship. The attorney leveraged the emotions of the jury by representing to them that her client was a highly active and athletic person before this life-altering injury.

In response, the defense argued that the surgeon had only minimal influence on the patient’s care, and therefore did not cause her injury. Defendant’s counsel contended there was no doctor-patient relationship since the surgeon merely consulted on her case over the phone. Thus, the defense attempted to shift blame onto the co-defendants, who had already settled out of court.

On Oct. 14, 2016, after fours of hour deliberation, the jury returned a verdict in favor of the patient for $25 million. The jury assigned 60% of the liability to the vascular surgeon and 40% liability to the hospital and other physicians, but as the co-defendants previously settled, this portion of liability was moot.

What this means to you: This case demonstrates the need for physicians to proceed with care when communicating with a potential patient. Creating a doctor-patient relationship opens physicians up to medical malpractice; therefore, it is imperative that physicians consciously evaluate communications with patients to determine whether a relationship has been formed. Additionally, like attorney communications with potential clients, it may behoove physicians to communicate that preliminary conversations are not intended to form a professional relationship with the patient. Of course, simply suggesting to a patient that there is not yet a doctor-patient relationship will not suffice if a reasonable person would still conclude that the relationship existed.

A rather large issue in this case was the miscommunication between the primary physician at the hospital and the vascular surgeon. This stemmed from a two-part report the primary physician sent to the surgeon: the preliminary report, which stated the patient’s “arterial structures enhance normally,” and the addendum, which reported “a possible short segment occlusion, emboli.” The vascular surgeon testified that if he had received the addendum, he would have changed his treatment of the patient; i.e., he would have admitted the patient rather than discharging her. This miscommunication illuminates a need for effective and efficient modes of communication within the medical profession. This need ranges from the relatively limited scope of communications between physicians relating to an individual patient to communications regarding interhospital patient transfers. Without a medium to relay information quickly about a patient, hospitals and medical professionals alike expose themselves to negligence claims.

A physician called on to consult on another physician’s patient is duty-bound to see the patient before forming any opinions. To recommend discharging the patient without performing a physical examination can be considered negligent even without a negative outcome triggering actual negligence liability. Additionally, the patient’s primary physician, knowing of the venous abnormality described in the patient’s test result, should have had a conversation with the consulting physician to understand the rationale behind the decision to discharge the patient. This would also give the primary physician the opportunity to call in an additional expert for a second opinion.

The litigation portion of this case illustrates what can be strong strategy. The majority of the parties to this case settled out of court — only the vascular surgeon remained at trial. This allowed the surgeon to shift blame onto the parties who already settled, presumably easing his financial burden. This method obviously only applies to multiparty litigation, but its utility for defendants has high potential. This method allows a negotiator to leverage the plaintiff’s ability to recover from other co-defendants in the out-of-court settlement, then shift blame back onto the settlers at trial, effectively reducing the damages paid. However, settling parties may have to prove to the remaining defendant(s) and the court that settlements prior to trial are made in good faith. Finally, the settlements out of court ought to contain confidentiality clauses, if they are reached in jurisdictions where such a clause would be appropriate.

This case also presents an interesting procedural issue: the choice to pursue a motion for summary judgment (i.e., a motion to convince the court that the discovery and depositions taken thus far in the case prove one side or the other should win, without the need for a trier of fact to resolve remaining factual disputes). While this step should be at least considered by all defendants during the litigation process, negligence defendants in certain jurisdictions may find these motions to have unacceptably high costs relative to the probability of their success. This is not to say that motions for summary judgment in negligence cases are impossible in all circumstances, but the decision to file such a motion should be made only after serious consideration of the likelihood of its success. Exercising caution in filing motions that have low chances of being granted will cut costs long-term.

Along the same lines as the choice of whether to file a motion for summary judgment is the decision of whether to file an appeal. If the current state of the law supports a conclusion that the vascular surgeon did not form a doctor-patient relationship with the patient in this case, an appeal would likely be very worthwhile. The surgeon here could appeal this decision based in part because the jury did not receive a full instruction on the issue of doctor-patient relationships. Not only could an appeal benefit this particular surgeon (and his insurance provider), but it could also deter patients from pursing negligence actions in similar situations in the future. While appeals are often costly, the long-term net benefit may very well outweigh the upfront costs.

REFERENCE

  1. Superior Court of Connecticut, Judicial District of Fairfield at Bridgeport Case No. FBTCV126037222.