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

Elena N. Sandell, JD

UCLA School of Law, 2018

News: A federal court of appeals affirmed a significant portion of a $31 million verdict in a medical malpractice action, but ordered further proceedings to determine whether the patient was partially at fault. The complaint alleged the federally funded clinic failed to adequately treat the patient’s high blood pressure, which resulted in kidney failure.

The appellate court analyzed the method the trial court used in calculating damages and found that the trial court did not abuse its discretion. However, the court indicated that further proceedings consistent with its opinion were appropriate since the trial court failed to cite a legal standard when it found that plaintiff was not comparatively negligent and did not contribute to his own injuries. Thus, the $31 million award was largely affirmed, even though the final amount may change if the patient is found to have been negligent.

Background: After failing a pre-employment medical examination, a patient visited a federally funded clinic to receive care for severe hypertension. At his first visit, a nurse practitioner ordered a routine checkup and diagnosed the patient with obesity and hypertension. During a follow-up visit, the patient received a prescription for his hypertension and ordered to return the following week; however, the patient failed to return to the clinic for two years.

After failing a second employment-related physical exam, the patient finally returned to the clinic. In the subsequent two years, he visited the same nurse practitioner 10 times. The nurse practitioner never explained to the patient the risks related to hypertension, and why it was important that he take his medication even if he showed no symptoms. According to the patient, he would often skip taking his medication if he did not feel ill, and would allow long periods to pass before going to the clinic for a follow-up visit. Furthermore, three years after the patient’s initial visit to the clinic, the nurse ordered new lab work, but she never reviewed the results.

During trial, it was revealed that had the nurse reviewed the results, she would have immediately discovered evidence of kidney damage and referred the patient to a nephrologist. Another year and a half passed before a doctor diagnosed the patient with end-stage renal disease and the patient learned that his hypertension had caused the severe damage to his kidneys. The patient was placed on hemodialysis and the kidney transplant waiting list. Ultimately, the patient received a successful kidney transplant, but his condition likely will require continued hemodialysis as well as one or more transplants in the future. Medicare covered the costs of hemodialysis, and also may cover part of the patient’s future costs.

The patient sued the United States under the Federal Tort Claims Act (FTCA) for the nurse practitioner’s negligence because the nurse practitioner and her employer were employees of the United States Public Health Service. After a five-day bench trial, the court found in favor of the patient and awarded $31 million in damages. On appeal, the government challenged three aspects of the ruling on damages, as well as the court’s failure to consider the patient’s own negligent actions based on the patient’s failure to take his hypertension medication. The court of appeals ordered further proceedings regarding the determination of the patient’s comparative negligence but found no reversible error regarding the ruling on damages.

What this means to you: A critical lesson from this case focuses on the legal concept of comparative negligence, which concerns whether a patient’s own negligent conduct played a role in causing or worsening his or her injury. While there are different methods of application depending on the state, one such application is straightforward: If a jury finds the patient’s fault was 20%, then the damages awarded would be reduced by 20%. It is important to closely evaluate the patient’s actions to determine whether raising comparative negligence as a defense is a worthwhile strategy.

One of the government’s main issues on appeal was that during trial, the standard by which to determine the patient’s comparative negligence had not been articulated, nor had any legal authority been cited. Both parties agreed the appropriate standard by which to measure the patient’s conduct was a “reasonable person” standard. In other words, the court must determine how a reasonable person would have acted in the specific circumstances of the case, and evaluate the patient’s conduct accordingly.

The court of appeals found the district court analyzed the case incorrectly. While the court did not doubt the negligence of the nurse practitioner, it focused its determination of comparative negligence based on how the patient acted with his limited understanding of his condition. Simply put, the court erroneously evaluated whether the patient was partially at fault based on what he understood were the risks associated with his behavior, not based on how a reasonable person would have acted in his circumstances.

As noted, the nurse practitioner failed to inform the patient of the risks and complications of hypertension. Further, the patient was not advised of the importance of regular medical evaluations and consistently taking prescribed medications. Because of this, the patient waited two years after his initial diagnosis before returning to the clinic. When he eventually received a prescription, he admitted that he only took it when he felt ill, rather than consistently. Based on his behavior, the patient clearly did not understand the risks associated with hypertension, nor did he understand how his prescribed medications should be taken to treat the condition.

Since the appellate court sent the matter back to the trial court for further proceedings, the trial court determined whether this patient’s behavior is negligent based on the reasonable person standard. If the court finds that the patient was negligent, it also will determine what percentage of negligence is attributable to the patient compared to the nurse practitioner. It is possible that the court will find that a reasonable person diagnosed with obesity and hypertension would have been more diligent in following up with a physician. It also is likely that a reasonable person would take medication as prescribed, rather than only when feeling ill.

Thus, it is likely that the $31 million award will be reduced in proportion to the patient’s negligence. Nonetheless, the patient’s recovery still will be substantial because the nurse practitioner’s negligence in failing to educate the plaintiff on his condition, the possible complications, and failing to review the results of the second checkup, which clearly indicated initial liver damage. The care provider’s negligence was not an issue raised on appeal.

This is a classic example of failure to follow two basic rules of risk reduction tactics designed to mitigate or prevent litigation for care providers. The first involves the meticulous documentation of patient education regarding the patient’s condition. The healthcare provider must provide the patient with the medical plan of care. Documentation confirming the patient’s understanding of the information is critical if litigation subsequently arises. Care providers should train staff on proper methods for documenting. Although there are no magic words to confirm a patient’s understanding, using standard language may help documentation procedures. This can include phrases like, “the patient was able to accurately repeat their antihypertensive medication instructions back to me” or “the patient and his wife were given appointment cards before leaving, and will receive appointment reminder phone calls per my practice policies.”

The second risk reduction tactic involves diagnostic testing. Unfortunately, it is not uncommon that care providers fail to follow up on diagnostic studies they order for patients. Instead, physicians may rely on their office, radiology, and laboratory staff to notify them of abnormal results. At best, this can lead to a false sense of security. At worst, if a reasonable physician in the same or similar circumstances would review the diagnostic studies himself or herself, then the failure to do so constitutes malpractice.

Well-designed programs are available to keep track of ordered tests and results. Regardless of how communication is designed to flow from test performed to test result reported, it is ultimately the responsibility of the ordering practitioner to review and follow up on the results of diagnostic studies ordered. One cannot completely rely on electronic programs and automatic reminders, as there must be human interaction and review. Care providers must be diligent about reviewing studies.


Decided on Nov. 7, 2019, in the United States Court of Appeals for the Seventh Circuit, Case Number 18-3060.