MEDICOLEGAL ISSUES Associate Editor: Steven M. Selbst, MD
Pediatric Emergency Medicine Legal Briefs
Key Words: lawsuit, legal briefs, malpractice, misdiagnosis
A jury found in favor of the physician. Winnebago County, Illinois Circuit Court Case, No. 10L-46.
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15-year-old adolescent girl was taken to an Illinois emergency department (ED) in February 2008 with severe abdominal pain and vomiting.1 The emergency physician examined the teenager and ordered diagnostic studies and intravenous fluids. Laboratory results showed an elevated white blood cell count. In the ED, the patient reported that her pain level had decreased to 0/10 after she was given antiemetic medication. She was discharged from the ED with a diagnosis of gastroenteritis and instructed to return if her symptoms worsened. The symptoms and pain continued to worsen over the next 6 days, but she did not return to the ED. On the sixth day, she was seen by a nurse practitioner at her family physician’s office. A computed tomography (CT) scan was ordered, which was suggestive of appendicitis. The patient underwent an appendectomy, which revealed a gangrenous appendix. The patient sued the emergency physician and claimed that the doctor should have performed a CT scan during the initial visit. She also claimed that the delay in diagnosis caused a longer postoperative hospital stay, longer recuperation period, and a larger scar. The emergency physician claimed that she considered appendicitis, but the abdominal examination was negative for signs of appendicitis. She maintained that a CT scan was not indicated. The physician also claimed that the teenager did not have appendicitis at the time she was seen in the ED.
From the Division of Emergency Medicine, Nemours/Alfred I. duPont Hospital for Children, Wilmington, DE, and Jefferson Medical College, Philadelphia, PA. Disclosure: The author declares no conflict of interest. Reprints: Steven M. Selbst, MD, Division of Emergency Medicine, Nemours/Alfred I. duPont Hospital for Children, Wilmington, DE; and Jefferson Medical College, Philadelphia, PA. Copyright * 2014 by Lippincott Williams & Wilkins ISSN: 0749-5161 DOI: 10.1097/PEC.0000000000000135
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EDITOR’S COMMENTS From what is known of this case, the emergency physician performed a careful physical examination and gave appropriate discharge instructions. Failure to diagnose appendicitis does not necessarily equate with malpractice. The patient has some responsibility, as she could have returned earlier to the ED as instructed.
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16-year-old adolescent boy from New York was seen by a physician in December 2007 because of abdominal pain.2 After a physical examination, an x-ray was performed, and blood studies were obtained. The physician diagnosed constipation and prescribed an enema and laxatives. The doctor advised the teenager to be evaluated by his primary care physician (PCP) within a week, or earlier if his pain persisted. Six days later, the patient was examined by his PCP. This physician performed additional blood work and obtained a CT scan. The blood test showed elevated leukocytes, and it was soon determined that his appendix had ruptured. He was also noted to be septic. The patient underwent an appendectomy and a procedure to treat a bowel obstruction. He was hospitalized for 7 days. The patient’s mother sued the emergency physician and alleged negligence in the failure to diagnose appendicitis. The family argued that prompt treatment would have prevented the rupture of the appendix and the subsequent sepsis. The family specifically claimed that the initial x-rays did not demonstrate an intestinal blockage and that the blood test results suggested a bacterial infection. The family contended that the emergency physician could have obtained a CT scan, which would have revealed the appendicitis. The emergency physician claimed that the teenager did not have appendicitis at the time she examined him because he reported pain in the upper quadrant of the abdomen, which was not suggestive of appendicitis. The defendant
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physician also claimed that the patient’s leukocyte count was not high enough to be alarming and that the appendix will typically rupture 24 to 48 hours after developing appendicitis, and the boy’s appendix did not rupture until 6 days later. A jury found in favor of the patient and awarded him $450,000. Bronx County, New York Supreme Court, Index No. 350597/08.
EDITOR’S COMMENTS Many facts of the case are missing, and it is not clear why the jury awarded money to this patient. This patient also waited 6 days for reexamination (by the PCP) despite being told to return sooner if the pain persisted.
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21-year-old woman went to the outpatient center of a Maryland hospital when she was 27 weeks pregnant in August 2008.3 Tests were conducted, and the patient’s condition was diagnosed with preeclampsia. She was treated and stabilized before delivery of the baby by emergency cesarean delivery. At the time of birth, the cord pH was 7.27, ‘‘indicating no significant hypoxia or brain injury.’’ The baby, however, required emergency resuscitation. The newborn was thrombocytopenic with a platelet count of 37,000 at birth and had a heart rate of 60 beats per minute. Chest compressions were allegedly begun 10 minutes after delivery, and 3 attempts were made to place an endotracheal tube for oxygenation. After 1 minute of life, the heart rate was not significantly improved; epinephrine was not administered. Records showed a UV line was placed 22 minutes after delivery for administration of medications. After 40 minutes of life, the baby’s pH was 6.88. The infant was transferred to another hospital a little more than 3 hours after birth. Head ultrasounds performed within the next 5 days revealed hemorrhagic and ischemic changes in the baby’s brain. The child had massive and irreversible brain injury. She is ventilator dependent and has a gastrostomy tube for feeding. She cannot sit, walk, or speak. She received care at a long-term care facility before going to her mother’s home. She www.pec-online.com
Copyright © 2014 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
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will require specialized nursing and medical care for life. The baby’s mother sued the hospital and claimed that the newborn resuscitation was not well performed. She contended that the UV line should have been placed within 1 minute. In addition, the baby’s mother claimed that the newborn was given an adult dose of heparin, which caused bleeding in the baby’s brain. A $3-million settlement was reached. Unknown Maryland venue.
EDITOR’S COMMENTS Although not an ED case, this one is frightening. How many EDs are prepared for an emergency delivery like this?
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pregnant woman presented to a Michigan ED and was found to have pneumonia.4 She also had hypertension, and preeclampsia was later diagnosed. In the ED, the woman allegedly received no treatment for hypertension. The emergency physician contacted the woman’s attending obstetrician, who was 45 miles away, and this doctor allegedly refused to come to the hospital. The obstetrician demanded admission to the hospital’s internal medicine service. The internal medicine service refused to admit the patient because it was deemed that obstetrical care was needed. The obstetrician then tried to arrange transfer of the woman to a maternal-fetal medicine specialist at a tertiary care center. This transfer was refused because the woman was deemed to be too unstable and in need of a cesarean delivery. Allegedly, the obstetrician still refused to come to the hospital or arrange for another obstetrician to come to the hospital. It is not clear if the obstetrician informed the emergency physician of the rejected attempts to transfer the woman or the maternal-fetal medicine physician’s recommendations for surgical intervention. The emergency physician decided to transfer the patient to another hospital almost 50 miles away. The emergency physician spoke with a different maternal-fetal medicine physician, and that physician accepted the transfer. After 5 hours in the ED, the woman was transferred by ambulance to the other hospital. During the transport, the woman experienced a placental abruption and internal hemorrhage. By the time of her arrival at the receiving hospital, she was in critical condition. A cesarean delivery was immediately performed, but the patient died. The baby was born with severe brain damage and later died. The patient’s family sued the ED and claimed that the emergency physician did not conduct an evaluation of the woman
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before departure, and he should have recognized that she was in active labor and too unstable for transfer. The patient claimed that the emergency physician withheld critical information from the receiving hospital about her severe hypertension, proteinuria, and edema. They claimed that both the mother and baby would have survived with proper treatment. A $900,000 settlement was reached. Unknown Michigan venue.
EDITOR’S COMMENTS The emergency physician was clearly in a difficult position, and this case reminds us of the significant problems involved in managing and transferring pregnant patients. This emergency physician was unable to get the obstetrical help needed, and it seems the hospital was not well prepared for an emergency such as this. Though not specifically mentioned, transfer of this unstable patient may have been an Emergency Medical Treatment and Active Labor Act violation.
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day and referred to the specialized eye center in Utah the next day. The child’s condition was eventually diagnosed with bacterial endophthalmitis. The child lost the eye and currently wears a prosthetic. The family sued the ophthalmologist and alleged negligence in failing to properly examine the child and in failing to timely refer him to a specialist. They claimed that the posterior chamber should have been visualized at the first visit to the ophthalmologist, but this was not done. The ophthalmologist claimed that the child and parents had failed to inform providers that the child had been poked in the eye with a toothbrush. When surgery was performed at the specialized eye center, a foreign body was found, after which the family remembered the traumatic incident. A jury found in favor of the physician and awarded him $7740 in costs. Silver Bow County, Montana District Court, Case No. DV-11-64.
EDITOR’S COMMENTS
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5-year-old boy was brought by his parents to a Montana medical center on a Sunday in June 2008.5 The child had a red right eye and forehead pain for 2 days. Conjunctivitis was diagnosed, and antibiotic drops were prescribed. The child was taken to an urgent care center 2 days later because of worsening symptoms. Conjunctivitis was again diagnosed, and a steroid ointment was added to the treatment regimen. The parents then took the child to an ophthalmologist 2 days after that because the pain was increasing and the eye was getting more red. Examination revealed that the eye was red, swollen, and sore. Light sensitivity was reported. Visual acuity was decreased in the right eye. The ophthalmologist diagnosed viral conjunctivitis, prescribed antibacterial and steroid drops, and informed the parents that there would be improvement in a week to 10 days. After 8 days, the mother contacted the ophthalmologist’s office because of increasing symptoms. An appointment was made for that afternoon. Symptoms at that time included blurry vision and light sensitivity. The visual acuity was 20/50 in the right eye. The ophthalmologist diagnosed iritis in the anterior chamber. The child’s symptoms worsened, and 2 days later, the ophthalmologist was contacted on his cell phone while he was on vacation. Allegedly, the doctor told the parents to take him to a specialized eye center in Utah, but when they declined to do so because of the distance, he then told them to attempt to contact his on-call ophthalmologist. The child was seen by another ophthalmologist that
This is an interesting case. It is somewhat unusual that the parents were held responsibleforwithholdinginformation.Parents often seem to forget minor trauma, but in this case, a jury apparently felt this was quite important and interfered with the physician’s management.
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2-year-old girl jumped off a dresser at home in March 2006 injuring her right leg.6 She was taken to a Michigan ED where x-rays revealed mildly angulated fractures of the distal tibia and fibula without significant displacement. A longleg posterior fiberglass splint was ordered by the emergency physician. The on-call orthopedic surgeon arranged a follow-up visit for 3 days later. The patient was examined by the orthopedist at that time, and it was noted that she was essentially pain free. The splint was left in place for another week to allow for swelling. Three days later, the child was brought back to the ED in the early morning hours. The mother sought a refill of the child’s pain medication, acetaminophen with codeine, because the family spilled their medication. The triage notes indicated that the mother reported the child could not sleep because of pain. An emergency physician performed a complete physical examination and found no concerning signs. He also examined the splint, held it in his hand, and asked the child if she had any pain. She denied pain. The mother allegedly reported that there was no new problem. The child was again brought back to the hospital 5 days later * 2014 Lippincott Williams & Wilkins
Copyright © 2014 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
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with no splint in place. The records reflected that the mother stated that the patient’s grandmother had removed the splint the previous day because the child had pain, which was worse with walking with the splint in place. The child developed sores on the foot, and the parents immediately took the child to the ED. X-rays showed some healing of the fracture. The orthopedist was consulted by telephone. The child was not casted, and plastic surgery was contacted to provide surgical treatment of the wounds. Over the next 6 years, the child had several debridements and 2 skin graft procedures. The family sued the treating physicians and claimed that the orthopedist should have removed the splint and casted the extremity after 3 days. The defendant physicians claimed that there was no reason to remove the splint because it was intact and the child did not complain of pain. They also claimed that a splint was a better option at that time because swelling was still possible. They also argued that the child had no restrictions and would not have limited employment opportunities in the future. A jury found in favor of the physicians. Kent County, Michigan Circuit Court, Case No. 11-0159-NH.
EDITOR’S COMMENTS It is surprising that the patient had complications from what seemed like a common fracture. Obviously, the jury felt that these complications were unrelated to the treatment by the physicians.
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28-year-old man was flipped and landed on his neck while roughhousing with friends in January 2008.7 He awoke the next day with an asthma attack and neck pain. He was transported by emergency medical personnel to a New Jersey hospital without immobilization of his neck. The emergency physician apparently did not look at the emergency medical services (EMS) report, which mentioned the neck pain. The doctor initially assessed the patient and was concerned about his asthma. During the course of treatment, the patient complained of neck pain, and he was placed in a hard cervical collar and sent for x-rays. X-rays showed a fracture dislocation at C6 to C7. The emergency physician then called a neurosurgeon and a radiologist. A CT scan was performed that showed worsening of the fracture dislocation, posing a risk to the spinal cord. No additional immobilization of the neck was provided. The patient later complained to a nurse about numbness in his arms, and later * 2014 Lippincott Williams & Wilkins
that day, he had no movement in his legs and no sensation below the T1 vertebra. He was placed in traction, but the spinal cord injury was not reversible. He has no use of his legs and only limited use of his arms and fingers. He is confined to a wheelchair and requires continuous care at a residential facility. During jury selection, a $2.1-million settlement was reached with several parties who treated the patient. The matter was then tried solely against the emergency physician, and the jury found in favor of the doctor. Union County, New Jersey Superior Court, Case No. unknown.
EDITOR’S COMMENTS This is a tragic case, and it is fortunate that the emergency physician was not found negligent. It is easy to see how the emergency physician would focus on the chief complaint of respiratory distress and treat the patient for asthma initially. This case reminds us of the importance of a good hand-off with EMS personnel. They were aware of the traumatic event the night before, but this information was not verbally passed on to the ED staff. It is important to read the written reports of others (EMS personnel). Unfortunately, these written reports are not always immediately available to ED staff at the time of the visit.
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surgeon served as an expert witness in a medical negligence case, which involved a gallbladder operation in 2008.8 The trial was held in 2010. The result of the case was a $400,000 verdict in favor of the patient. After the trial, it was discovered that some statements made by the surgeon in testimony for the case might not have been accurate. The doctor had testified that he had been sued for malpractice only once in the past, about 15 or 18 years earlier, although the prosecutors claimed he was named as a defendant in cases at least twice, with the most recent one being in 2007. Prosecutors also claimed that the surgeon testified at trial that he was on staff at a hospital without restrictions, but his surgery privileges had been revoked at that time for failure to maintain liability insurance, failure to request help from senior colleagues when life-threatening complications occurred, failure to properly supervise residents, and concerns about postoperative complication rates. The doctor was charged with felony perjury. He surrendered his medical license and turned himself in to face charges of perjury in July 2013.
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EDITOR’S COMMENTS Expert witnesses must remain honest. When testifying on your own credentials, it is likely that all facts will be verified. It is unusual for perjury charges to result, but this case demonstrates that serious repercussions can occur for the dishonest witness.
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n orthopedic surgeon provided a ‘‘draft’’ report of his expert opinion to a Pennsylvania law firm in a medical malpractice suit involving another orthopedic surgeon who was a defendant in a malpractice case.9 The expert witness had requested additional information, specifically x-rays of the patient, to complete his expert opinion. The law firm did not supply the x-rays but used the draft report in settlement negotiations for the case. The surgeon who was sued in the case then filed a grievance against the expert witness with the American Academy of Orthopaedic Surgeons (AAOS) for violation of the organization’s Standards of Professionalism on Orthopedic Expert Witness Testimony. It was during the preparation for the hearing regarding this grievance that the expert witness learned that the law firm had removed the heading ‘‘draft report’’ from the opinion he had provided during the settlement negotiations for the case. The expert witness was suspended from AAOS for 2 years. Information regarding the suspension was placed on the AAOS Web site and was available to the public. The expert witness then sued the law firm and the AAOS regarding the matter, claiming that his work as an expert had been negatively impacted by the dissemination of information of the suspension. A jury trial ended in a verdict in favor of the expert witness. The doctor settled with the law firm after the verdict for an undisclosed amount. The verdict against the AAOS was for $196,000. US District Court, Eastern District of Pennsylvania, Case No. 2:10-CV-01710-JHS.
EDITOR’S COMMENTS Most experiences as expert witness go without complications for the expert. In this case, it seems that the law firm did not act appropriately after the expert requested additional information. The expert had given them only a draft to be verified after all the information of the case was reviewed. It may have been wise to withhold any expert report until all the facts of the case were in, but it is not so unusual to provide a draft report pending further information about a case. Apparently, the AAOS reviews the expert witness testimony, which was suspected to be unfair. Likewise, the American www.pec-online.com
Copyright © 2014 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
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College of Emergency Physicians will arrangefor review of selected expert witness testimony if a member of the organization has a concern.
3. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:19.
REFERENCES
4. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:8Y9.
1. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:10.
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2. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:10Y11.
5. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:24.
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6. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:27. 7. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:8. 8. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:3.
* 2014 Lippincott Williams & Wilkins
Copyright © 2014 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
Pediatric Emergency Medicine Legal Briefs
Key Words: lawsuit, legal briefs, malpractice, misdiagnosis
A jury found in favor of the physician. Winnebago County, Illinois Circuit Court Case, No. 10L-46.
A
15-year-old adolescent girl was taken to an Illinois emergency department (ED) in February 2008 with severe abdominal pain and vomiting.1 The emergency physician examined the teenager and ordered diagnostic studies and intravenous fluids. Laboratory results showed an elevated white blood cell count. In the ED, the patient reported that her pain level had decreased to 0/10 after she was given antiemetic medication. She was discharged from the ED with a diagnosis of gastroenteritis and instructed to return if her symptoms worsened. The symptoms and pain continued to worsen over the next 6 days, but she did not return to the ED. On the sixth day, she was seen by a nurse practitioner at her family physician’s office. A computed tomography (CT) scan was ordered, which was suggestive of appendicitis. The patient underwent an appendectomy, which revealed a gangrenous appendix. The patient sued the emergency physician and claimed that the doctor should have performed a CT scan during the initial visit. She also claimed that the delay in diagnosis caused a longer postoperative hospital stay, longer recuperation period, and a larger scar. The emergency physician claimed that she considered appendicitis, but the abdominal examination was negative for signs of appendicitis. She maintained that a CT scan was not indicated. The physician also claimed that the teenager did not have appendicitis at the time she was seen in the ED.
From the Division of Emergency Medicine, Nemours/Alfred I. duPont Hospital for Children, Wilmington, DE, and Jefferson Medical College, Philadelphia, PA. Disclosure: The author declares no conflict of interest. Reprints: Steven M. Selbst, MD, Division of Emergency Medicine, Nemours/Alfred I. duPont Hospital for Children, Wilmington, DE; and Jefferson Medical College, Philadelphia, PA. Copyright * 2014 by Lippincott Williams & Wilkins ISSN: 0749-5161 DOI: 10.1097/PEC.0000000000000135
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EDITOR’S COMMENTS From what is known of this case, the emergency physician performed a careful physical examination and gave appropriate discharge instructions. Failure to diagnose appendicitis does not necessarily equate with malpractice. The patient has some responsibility, as she could have returned earlier to the ED as instructed.
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16-year-old adolescent boy from New York was seen by a physician in December 2007 because of abdominal pain.2 After a physical examination, an x-ray was performed, and blood studies were obtained. The physician diagnosed constipation and prescribed an enema and laxatives. The doctor advised the teenager to be evaluated by his primary care physician (PCP) within a week, or earlier if his pain persisted. Six days later, the patient was examined by his PCP. This physician performed additional blood work and obtained a CT scan. The blood test showed elevated leukocytes, and it was soon determined that his appendix had ruptured. He was also noted to be septic. The patient underwent an appendectomy and a procedure to treat a bowel obstruction. He was hospitalized for 7 days. The patient’s mother sued the emergency physician and alleged negligence in the failure to diagnose appendicitis. The family argued that prompt treatment would have prevented the rupture of the appendix and the subsequent sepsis. The family specifically claimed that the initial x-rays did not demonstrate an intestinal blockage and that the blood test results suggested a bacterial infection. The family contended that the emergency physician could have obtained a CT scan, which would have revealed the appendicitis. The emergency physician claimed that the teenager did not have appendicitis at the time she examined him because he reported pain in the upper quadrant of the abdomen, which was not suggestive of appendicitis. The defendant
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physician also claimed that the patient’s leukocyte count was not high enough to be alarming and that the appendix will typically rupture 24 to 48 hours after developing appendicitis, and the boy’s appendix did not rupture until 6 days later. A jury found in favor of the patient and awarded him $450,000. Bronx County, New York Supreme Court, Index No. 350597/08.
EDITOR’S COMMENTS Many facts of the case are missing, and it is not clear why the jury awarded money to this patient. This patient also waited 6 days for reexamination (by the PCP) despite being told to return sooner if the pain persisted.
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21-year-old woman went to the outpatient center of a Maryland hospital when she was 27 weeks pregnant in August 2008.3 Tests were conducted, and the patient’s condition was diagnosed with preeclampsia. She was treated and stabilized before delivery of the baby by emergency cesarean delivery. At the time of birth, the cord pH was 7.27, ‘‘indicating no significant hypoxia or brain injury.’’ The baby, however, required emergency resuscitation. The newborn was thrombocytopenic with a platelet count of 37,000 at birth and had a heart rate of 60 beats per minute. Chest compressions were allegedly begun 10 minutes after delivery, and 3 attempts were made to place an endotracheal tube for oxygenation. After 1 minute of life, the heart rate was not significantly improved; epinephrine was not administered. Records showed a UV line was placed 22 minutes after delivery for administration of medications. After 40 minutes of life, the baby’s pH was 6.88. The infant was transferred to another hospital a little more than 3 hours after birth. Head ultrasounds performed within the next 5 days revealed hemorrhagic and ischemic changes in the baby’s brain. The child had massive and irreversible brain injury. She is ventilator dependent and has a gastrostomy tube for feeding. She cannot sit, walk, or speak. She received care at a long-term care facility before going to her mother’s home. She www.pec-online.com
Copyright © 2014 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
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will require specialized nursing and medical care for life. The baby’s mother sued the hospital and claimed that the newborn resuscitation was not well performed. She contended that the UV line should have been placed within 1 minute. In addition, the baby’s mother claimed that the newborn was given an adult dose of heparin, which caused bleeding in the baby’s brain. A $3-million settlement was reached. Unknown Maryland venue.
EDITOR’S COMMENTS Although not an ED case, this one is frightening. How many EDs are prepared for an emergency delivery like this?
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pregnant woman presented to a Michigan ED and was found to have pneumonia.4 She also had hypertension, and preeclampsia was later diagnosed. In the ED, the woman allegedly received no treatment for hypertension. The emergency physician contacted the woman’s attending obstetrician, who was 45 miles away, and this doctor allegedly refused to come to the hospital. The obstetrician demanded admission to the hospital’s internal medicine service. The internal medicine service refused to admit the patient because it was deemed that obstetrical care was needed. The obstetrician then tried to arrange transfer of the woman to a maternal-fetal medicine specialist at a tertiary care center. This transfer was refused because the woman was deemed to be too unstable and in need of a cesarean delivery. Allegedly, the obstetrician still refused to come to the hospital or arrange for another obstetrician to come to the hospital. It is not clear if the obstetrician informed the emergency physician of the rejected attempts to transfer the woman or the maternal-fetal medicine physician’s recommendations for surgical intervention. The emergency physician decided to transfer the patient to another hospital almost 50 miles away. The emergency physician spoke with a different maternal-fetal medicine physician, and that physician accepted the transfer. After 5 hours in the ED, the woman was transferred by ambulance to the other hospital. During the transport, the woman experienced a placental abruption and internal hemorrhage. By the time of her arrival at the receiving hospital, she was in critical condition. A cesarean delivery was immediately performed, but the patient died. The baby was born with severe brain damage and later died. The patient’s family sued the ED and claimed that the emergency physician did not conduct an evaluation of the woman
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before departure, and he should have recognized that she was in active labor and too unstable for transfer. The patient claimed that the emergency physician withheld critical information from the receiving hospital about her severe hypertension, proteinuria, and edema. They claimed that both the mother and baby would have survived with proper treatment. A $900,000 settlement was reached. Unknown Michigan venue.
EDITOR’S COMMENTS The emergency physician was clearly in a difficult position, and this case reminds us of the significant problems involved in managing and transferring pregnant patients. This emergency physician was unable to get the obstetrical help needed, and it seems the hospital was not well prepared for an emergency such as this. Though not specifically mentioned, transfer of this unstable patient may have been an Emergency Medical Treatment and Active Labor Act violation.
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day and referred to the specialized eye center in Utah the next day. The child’s condition was eventually diagnosed with bacterial endophthalmitis. The child lost the eye and currently wears a prosthetic. The family sued the ophthalmologist and alleged negligence in failing to properly examine the child and in failing to timely refer him to a specialist. They claimed that the posterior chamber should have been visualized at the first visit to the ophthalmologist, but this was not done. The ophthalmologist claimed that the child and parents had failed to inform providers that the child had been poked in the eye with a toothbrush. When surgery was performed at the specialized eye center, a foreign body was found, after which the family remembered the traumatic incident. A jury found in favor of the physician and awarded him $7740 in costs. Silver Bow County, Montana District Court, Case No. DV-11-64.
EDITOR’S COMMENTS
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5-year-old boy was brought by his parents to a Montana medical center on a Sunday in June 2008.5 The child had a red right eye and forehead pain for 2 days. Conjunctivitis was diagnosed, and antibiotic drops were prescribed. The child was taken to an urgent care center 2 days later because of worsening symptoms. Conjunctivitis was again diagnosed, and a steroid ointment was added to the treatment regimen. The parents then took the child to an ophthalmologist 2 days after that because the pain was increasing and the eye was getting more red. Examination revealed that the eye was red, swollen, and sore. Light sensitivity was reported. Visual acuity was decreased in the right eye. The ophthalmologist diagnosed viral conjunctivitis, prescribed antibacterial and steroid drops, and informed the parents that there would be improvement in a week to 10 days. After 8 days, the mother contacted the ophthalmologist’s office because of increasing symptoms. An appointment was made for that afternoon. Symptoms at that time included blurry vision and light sensitivity. The visual acuity was 20/50 in the right eye. The ophthalmologist diagnosed iritis in the anterior chamber. The child’s symptoms worsened, and 2 days later, the ophthalmologist was contacted on his cell phone while he was on vacation. Allegedly, the doctor told the parents to take him to a specialized eye center in Utah, but when they declined to do so because of the distance, he then told them to attempt to contact his on-call ophthalmologist. The child was seen by another ophthalmologist that
This is an interesting case. It is somewhat unusual that the parents were held responsibleforwithholdinginformation.Parents often seem to forget minor trauma, but in this case, a jury apparently felt this was quite important and interfered with the physician’s management.
A
2-year-old girl jumped off a dresser at home in March 2006 injuring her right leg.6 She was taken to a Michigan ED where x-rays revealed mildly angulated fractures of the distal tibia and fibula without significant displacement. A longleg posterior fiberglass splint was ordered by the emergency physician. The on-call orthopedic surgeon arranged a follow-up visit for 3 days later. The patient was examined by the orthopedist at that time, and it was noted that she was essentially pain free. The splint was left in place for another week to allow for swelling. Three days later, the child was brought back to the ED in the early morning hours. The mother sought a refill of the child’s pain medication, acetaminophen with codeine, because the family spilled their medication. The triage notes indicated that the mother reported the child could not sleep because of pain. An emergency physician performed a complete physical examination and found no concerning signs. He also examined the splint, held it in his hand, and asked the child if she had any pain. She denied pain. The mother allegedly reported that there was no new problem. The child was again brought back to the hospital 5 days later * 2014 Lippincott Williams & Wilkins
Copyright © 2014 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
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with no splint in place. The records reflected that the mother stated that the patient’s grandmother had removed the splint the previous day because the child had pain, which was worse with walking with the splint in place. The child developed sores on the foot, and the parents immediately took the child to the ED. X-rays showed some healing of the fracture. The orthopedist was consulted by telephone. The child was not casted, and plastic surgery was contacted to provide surgical treatment of the wounds. Over the next 6 years, the child had several debridements and 2 skin graft procedures. The family sued the treating physicians and claimed that the orthopedist should have removed the splint and casted the extremity after 3 days. The defendant physicians claimed that there was no reason to remove the splint because it was intact and the child did not complain of pain. They also claimed that a splint was a better option at that time because swelling was still possible. They also argued that the child had no restrictions and would not have limited employment opportunities in the future. A jury found in favor of the physicians. Kent County, Michigan Circuit Court, Case No. 11-0159-NH.
EDITOR’S COMMENTS It is surprising that the patient had complications from what seemed like a common fracture. Obviously, the jury felt that these complications were unrelated to the treatment by the physicians.
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28-year-old man was flipped and landed on his neck while roughhousing with friends in January 2008.7 He awoke the next day with an asthma attack and neck pain. He was transported by emergency medical personnel to a New Jersey hospital without immobilization of his neck. The emergency physician apparently did not look at the emergency medical services (EMS) report, which mentioned the neck pain. The doctor initially assessed the patient and was concerned about his asthma. During the course of treatment, the patient complained of neck pain, and he was placed in a hard cervical collar and sent for x-rays. X-rays showed a fracture dislocation at C6 to C7. The emergency physician then called a neurosurgeon and a radiologist. A CT scan was performed that showed worsening of the fracture dislocation, posing a risk to the spinal cord. No additional immobilization of the neck was provided. The patient later complained to a nurse about numbness in his arms, and later * 2014 Lippincott Williams & Wilkins
that day, he had no movement in his legs and no sensation below the T1 vertebra. He was placed in traction, but the spinal cord injury was not reversible. He has no use of his legs and only limited use of his arms and fingers. He is confined to a wheelchair and requires continuous care at a residential facility. During jury selection, a $2.1-million settlement was reached with several parties who treated the patient. The matter was then tried solely against the emergency physician, and the jury found in favor of the doctor. Union County, New Jersey Superior Court, Case No. unknown.
EDITOR’S COMMENTS This is a tragic case, and it is fortunate that the emergency physician was not found negligent. It is easy to see how the emergency physician would focus on the chief complaint of respiratory distress and treat the patient for asthma initially. This case reminds us of the importance of a good hand-off with EMS personnel. They were aware of the traumatic event the night before, but this information was not verbally passed on to the ED staff. It is important to read the written reports of others (EMS personnel). Unfortunately, these written reports are not always immediately available to ED staff at the time of the visit.
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surgeon served as an expert witness in a medical negligence case, which involved a gallbladder operation in 2008.8 The trial was held in 2010. The result of the case was a $400,000 verdict in favor of the patient. After the trial, it was discovered that some statements made by the surgeon in testimony for the case might not have been accurate. The doctor had testified that he had been sued for malpractice only once in the past, about 15 or 18 years earlier, although the prosecutors claimed he was named as a defendant in cases at least twice, with the most recent one being in 2007. Prosecutors also claimed that the surgeon testified at trial that he was on staff at a hospital without restrictions, but his surgery privileges had been revoked at that time for failure to maintain liability insurance, failure to request help from senior colleagues when life-threatening complications occurred, failure to properly supervise residents, and concerns about postoperative complication rates. The doctor was charged with felony perjury. He surrendered his medical license and turned himself in to face charges of perjury in July 2013.
Selbst
EDITOR’S COMMENTS Expert witnesses must remain honest. When testifying on your own credentials, it is likely that all facts will be verified. It is unusual for perjury charges to result, but this case demonstrates that serious repercussions can occur for the dishonest witness.
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n orthopedic surgeon provided a ‘‘draft’’ report of his expert opinion to a Pennsylvania law firm in a medical malpractice suit involving another orthopedic surgeon who was a defendant in a malpractice case.9 The expert witness had requested additional information, specifically x-rays of the patient, to complete his expert opinion. The law firm did not supply the x-rays but used the draft report in settlement negotiations for the case. The surgeon who was sued in the case then filed a grievance against the expert witness with the American Academy of Orthopaedic Surgeons (AAOS) for violation of the organization’s Standards of Professionalism on Orthopedic Expert Witness Testimony. It was during the preparation for the hearing regarding this grievance that the expert witness learned that the law firm had removed the heading ‘‘draft report’’ from the opinion he had provided during the settlement negotiations for the case. The expert witness was suspended from AAOS for 2 years. Information regarding the suspension was placed on the AAOS Web site and was available to the public. The expert witness then sued the law firm and the AAOS regarding the matter, claiming that his work as an expert had been negatively impacted by the dissemination of information of the suspension. A jury trial ended in a verdict in favor of the expert witness. The doctor settled with the law firm after the verdict for an undisclosed amount. The verdict against the AAOS was for $196,000. US District Court, Eastern District of Pennsylvania, Case No. 2:10-CV-01710-JHS.
EDITOR’S COMMENTS Most experiences as expert witness go without complications for the expert. In this case, it seems that the law firm did not act appropriately after the expert requested additional information. The expert had given them only a draft to be verified after all the information of the case was reviewed. It may have been wise to withhold any expert report until all the facts of the case were in, but it is not so unusual to provide a draft report pending further information about a case. Apparently, the AAOS reviews the expert witness testimony, which was suspected to be unfair. Likewise, the American www.pec-online.com
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College of Emergency Physicians will arrangefor review of selected expert witness testimony if a member of the organization has a concern.
3. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:19.
REFERENCES
4. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:8Y9.
1. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:10.
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2. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:10Y11.
5. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:24.
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6. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:27. 7. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:8. 8. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2013;29:3.
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Copyright © 2014 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
