By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles

Jamie Terrence, RN

President and Founder, Healthcare Risk Services

Former Director of Risk Management Services 
(2004-2013)

California Hospital Medical Center

Los Angeles

Morgan Lynch, 2018 JD Candidate

Pepperdine University School of Law

Malibu, CA

News: In 2013, a boat builder suffered a hand fracture when an unsecured kayak fell on his hand. He received surgery on his hand, including the insertion of screws. The surgeon was confident the screws were properly encased, but the patient experienced unusual pain and discomfort following the surgery. After reviewing later scans of the patient’s hand, the surgeon still maintained that the surgery was successful.

The patient received a second opinion from a different surgeon, who discovered that a screw was not sufficiently encased and was contacting the patient’s wrist joint, causing his pain and discomfort. That surgeon removed the screw, and the patient was forced to undergo three additional surgeries.

The patient filed suit against the hospital and the initial surgeon, claiming loss of wages, permanent disfigurement, and impairment. After several days of trial, a jury found in favor of the patient and awarded him $2 million.

Background: A 49-year-old man suffered a fractured right wrist after a kayak fell on him in 2013. Several months thereafter, the patient underwent hand surgery. The surgeon recommended and performed a bone graft and inserted a compression screw into the man’s scaphoid bone. However, later scans revealed that the compression screw protruded out of the bone and stuck into the patient’s wrist joint.

The surgeon also failed to recognize the protrusion on follow-up scans. When the patient sought a second opinion, a different surgeon noted the error and removed the screw, but the patient required multiple surgeries to treat the damage and continued to experience pain and loss of function in his wrist.

The patient sued the physician and the hospital in 2015, alleging that the physician failed to properly insert the screw in his hand during the surgery. He further contended that as a direct result of the physician’s negligence, he suffered wrist complications that required three subsequent surgeries to remedy. The patient requested damages for loss of income, permanent disfigurement, and impairment.

At trial, the plaintiff focused on the fact that he lost function in his dominant hand, the hand he used extensively for his work as a boat builder. However, the foundation of the plaintiff’s case was established during discovery. During his deposition, the surgeon claimed he was certain that he had properly placed the screw, but at trial he indicated that the screw may have been flush with the bone instead of encased. This discrepancy between the deposition and trial testimony was a major focus of the plaintiff’s case.

The defense contended that the physician gave the patient quality care, and therefore conformed to the applicable standard of care. The defense argued that treating a fracture is particularly difficult. Both the plaintiff and the defense called experts who chair orthopedic hand surgery departments of major medical centers. Unsurprisingly, the experts disagreed on the specifics of appropriate treatment for a hand fracture. The trial lasted four days, and the nine-member jury deliberated for two hours before rendering a verdict in favor of the plaintiff for $2 million in damages.

The plaintiff’s counsel participated in several press releases, one of which included the statement that people put trust in “doctors and hospitals to treat them with the same level of planning and care they would expect for their own loved ones.”

What this means to you: A major factor in this case was inconsistency in the physician’s testimony. Had the physician maintained consistency between his deposition and the trial, he may have retained more credibility with the jury. This kind of inconsistency usually is the result of poor preparation before the deposition or before the trial, or both.

Relatedly, creating a reliable medical record is crucial to a defensible position in litigation, and as such, medical professionals must be educated on how to establish an accurate and consistent record. Vendors offer options for organization of the record as well as intuitive interfaces that can help minimize the inadvertent omission of material facts.

Regardless of the method used for creating and maintaining the record, hospitals should create a standard procedure for all medical professionals and staff. Moreover, if litigation occurs, a witness should review the relevant medical records prior to the deposition — and seek the advice of counsel in connection with and prior to doing so — to refresh the witness’s recollection. Before trial, witnesses should prepare and be refreshed again, including review of the medical record and the deposition transcript, to ensure accuracy and consistency. Close consultation and preparation with attorneys is critical throughout litigation, but if trial is imminent, even more significant time and resources must be allocated to guarantee a thorough and successful defense.

This case also presents yet another incentive for avoiding litigation: the prevention of bad press. A significant nonmonetary benefit of settling cases is the mitigation of negative publicity. The plaintiff’s counsel in this case implied that the physician here was remiss in his surgery, performing in a way that would disappoint one’s family. Such bad publicity can be significantly damaging to a hospital and physician, to the extent that mitigating this risk should factor into a litigation analysis.

The physician’s failure to recognize the protrusion of the screw in the patient’s scan raises the issue of adequate care when following up with a patient. A scan is only as good as the physician’s interpretation. A radiologist’s review, routine in most institutions, may have helped to either confirm proper placement of the screw or to alert the surgeon to screw protrusion. Another factor the surgeon should have considered was the patient’s postoperative level of pain. Was the patient’s pain level appropriate for the procedure performed, compared to others who underwent the same surgery? Often, assumptions are made that a patient may have a low pain threshold, but this is an unfortunate and dangerous assumption to make. Complaints of pain that extend beyond what is anticipated warrant investigation. Exercising sufficient care during a follow-up appointment can avoid costly complications with a patient’s treatment.

Bearing that in mind, physicians and other medical professionals nonetheless invariably miss things when reviewing scans. Therefore, creating a system of review procedures may be a wise business decision for hospitals. The time cost of reviewing physicians’ work must be weighed against the benefit of higher diagnosis accuracy. Such a determination would require support from data gathered from physician misdiagnoses. Additionally, hospitals must consider whether instituting a review policy would step on the toes of physicians and communicate a lack of trust and respect for their professional effectiveness. Ultimately, the benefits of a review policy may outweigh any negative aspects, and should, at a minimum, be considered.

REFERENCE

Decided Oct. 23, 2017, in the Superior Court of Maine; Case Number CV-15-137.