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By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services
California Hospital Medical Center
Morgan Lynch, 2018 JD Candidate
Pepperdine University School of Law
News: A man presented to a local hospital for treatment of gallstones. The treating physician induced a coma, but left the patient untreated for a month due to a misdiagnosis. Notably, the physician had been placed on probation, and was on probation at the time of treatment for similarly negligent care of a similarly situated patient. After a month, the hospital sought a second opinion from another physician who promptly operated on the patient without complication.
Despite the correct diagnosis and prompt operation by the second physician, the patient suffered substantial injuries. The patient filed suit against the hospital and the first physician. A jury awarded the patient $43 million, which was reduced pursuant to a high-low arrangement between the parties.
Background: In April 2014, a 61-year-old man presented to a hospital for the treatment of stomach pain and vomiting. Upon analyzing the patient’s condition, a physician erroneously diagnosed the patient with an anatomical abnormality he said would make surgery to remove bile duct stones impossible. As a result, the physician placed the patient in a medically induced coma for more than a month. During that time, the patient was effectively abandoned by the physician and hospital personnel.
The hospital eventually sought a second opinion on the patient’s condition. A different physician rejected the initial diagnosis, revived the patient, and performed surgery without complication. Despite the successful surgery, the patient suffered serious and incapacitating injuries as a result of the extended coma and required a liver transplant. His injuries ultimately left him unable to continue work as a chemicals company vice president.
Following these events, the patient filed suit against the initial physician, the hospital, and others, alleging that the hospital was negligent in allowing the initial physician to treat the patient.
Of particular importance to this negligence claim is that the physician was previously placed on probation by the state medical board. In June 2013, the state medical board found glaring deficiencies in the physician’s treatment of a patient similarly situated to the patient in this case. In the analogous case, the board determined that the physician failed to adequately document the patient’s records, inaccurately diagnosed the patient, and performed medically unnecessary procedures. For example, the board found that the physician inaccurately described the location of a patient’s ulcer and falsely claimed that he had performed multiple biopsies to test for cancer.
The case proceeded to trial, and the parties entered into a high-low agreement whereby the patient was guaranteed no less than $4 million and limited to $9 million. At trial, evidence demonstrated that despite hospital policy requiring automatic suspension of physicians on probation, the hospital permitted this physician to continue practicing. According to the lawsuit, hospital administrators prohibited a medical executive committee review of the physician’s hospital standing.
After the five-day trial, the jury returned a verdict in favor of the patient for approximately $43 million. The verdict comprised approximately $18.5 million for past and future pain and suffering, lost earnings and medical care, and $25 million in punitive damages. The jury found the hospital 90% liable and the physician 10% liable. Because of the high-low agreement, the verdict is immune to the state’s statutory cap on noneconomic damages, and the recovery will be reduced to $9 million.
What this means to you: One of the many mistakes made by the medical professionals and hospital in this case was the failure to adequately monitor patients. Patients require consistent — and sometimes constant — monitoring and care, and this is particularly true for comatose patients. To leave a patient unattended for a month is to beg for a costly lawsuit.
A potential method for preventing the abandonment of a patient is to develop and implement a workflow of reviews based on date landmarks with respect to all patients. This workflow must require actionable plans to be developed where feasible. Regulations require daily progress notes by an attending physician be documented in the patient’s medical record. Appropriate date-based landmarks should be based on a patient’s condition, and perhaps based on the department in which the patient is being treated. For example, patients in the ICU and ER would have much tighter time frames than non-urgent patients undergoing recovery after routine operations. Regardless of the method by which the workflows are generated, they must be created based on the applicable standard of care.
Another mechanism for preventing stagnation of treatment is early second opinions. This is especially valuable in situations such as the present case, where an initial physician’s suggested treatment appears patently unreasonable. Second opinions should be written into patient care workflows, with the additional safeguard that they are triggered where no actionable plan can be created.
If medical support staff feel disempowered to seek a second opinion, hospitals may consider implementing an anonymous secondary review procedure. This can involve a second physician reviewing the medical record without alerting the primary care physician — essentially an audit of the patient’s file. Many hospitals use nurse case managers to review appropriateness of care on a daily basis, who can review the medical plan of care as documented by the physician and communicate unusual or unnecessary practices to a utilization review committee. That committee’s leader can then intervene to correct or amend the plan of care.
This case also raises concerns about physician probation and other corrective procedures. The hospital’s policy to automatically suspend physicians on probation is an excellent measure to reduce medical malpractice, but only if it is actually implemented. Permitting a physician on probation to practice medicine raises increased risk for negligence claims. Even if the physician adheres to the standard of care, disgruntled patients may use the probationary status as leverage in litigation that is otherwise in the hospital’s favor. A more advisable course of action is to suspend physicians from practicing medicine during the probationary period.
A less severe alternative is to proctor physicians on probation. This allows the physician to be observed and mentored by a more senior and experienced physician who can evaluate the probationer’s progress while assuring the safety of his or her patients. Proctoring enables a hospital’s peer review committee to make a well-informed decision to either reinstate the physician with full privileges or proceed toward permanent removal of the physician. Hospitals should support their physicians and provide them with resources to return to good standing with medical boards, if the hospital considers the physician capable of returning to standard employment with the hospital. Establishing such a clear path avoids situations where a physician is suspended indefinitely, as that offers finality to neither the physician nor the hospital.
Finally, this case presents an issue that plagues hospitals and other businesses: ensuring that procedures and initiatives are not only implemented, but are actually followed. This can be a difficult task, but it must be prioritized for the procedures to have any meaningful impact. If a hospital finds it necessary to develop a policy, failure to see it practiced is nothing more than a waste of time and resources. Furthermore, it can be argued as evidence of negligence in malpractice litigation. Taking this case as an example, the hospital’s bylaws mandated the suspension of physicians who are placed on probation. The hospital knew such physicians should not practice medicine, yet the hospital failed to follow its own procedures and instead let the probationer continue to practice. Jury members may be persuaded that a hospital failing to follow its own procedures is evidence of negligence, thus eliminating any potential advantage from having a beneficial policy in place in the first instance. Thus, it is critical for hospitals to ensure that medical professionals and staff are aware of the policies and adhere to them.
Decided on Jan. 20, 2018, in the 241st District Court in Smith County, Texas; case number 16-0853-C.
Financial Disclosure: Author Greg Freeman, Editor Jill Drachenberg, Editor Jesse Saffron, Editorial Group Manager Terrey L. Hatcher and Nurse Planner Maureen Archambault report no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study. Consulting Editor Arnold Mackles, MD, MBA, LHRM, discloses that he is an author and advisory board member for The Sullivan Group and that he is owner, stockholder, presenter, author, and consultant for Innovative Healthcare Compliance Group.