Mr. P is a 53-year-old physician assistant in a two-physician family practice. Although required by state law to practice under the supervision of a physician, there were many times when he worked in the clinic on his own. He felt experienced enough to handle almost anything that was thrown his way, but a diabetic patient with pneumonia proved problematic.

Thomas was a 55-year-old diabetic who called the office looking for an appointment because of increasing malaise for several days. Neither of the physicians was there, and Mr. P was the only clinician in the office. The patient agreed to see Mr. P, who was familiar with his clinical situation from previous visits. Thomas arrived with symptoms of fatigue, shortness of breath, high blood sugars, and high BP. On examination, Mr. P found a 4+ urinary glucose and noted reduced or absent breath sounds bilaterally at the bases. He ordered a complete blood count, random blood glucose, and a stat chest x-ray.

The results came back the following day: consolidation in the left lower lobe and a pleural effusion on the left side. The blood work showed a WBC count of 15,000/mL with a left shift and a blood glucose of 400 mg/dL. By this time, Mr. P’s supervising physician had returned to the office. He reviewed the lab results and the x-rays and phoned in a prescription for amoxicillin/clavulanate (Augmentin), which the patient started taking three days after his initial appointment. Mr. P’s supervisor also talked to Thomas and arranged to see him the next day if there was no improvement. In later testimony, the physician stated that he had advised Thomas to go to an ER, but this was not supported by the chart entries and was denied by the patient’s wife.

The next day, Thomas came to the clinic and reported that he was more short of breath and fatigued than at the first visit. In addition, he had noted high blood glucose levels at home. Overnight, he had developed a productive cough, which the physician took to be a good sign, but his breath sounds were still reduced on the left side. The physician urged patience and sent Thomas home. Unfortunately, he died 12 hours later. Autopsy showed left lower-lobe consolidation with pneumonia and an infected pleural effusion that had collapsed the left lung. Thomas’ son consulted a plaintiff lawyer, who filed a malpractice lawsuit against Mr. P, the supervising physician, and the clinic.

In her deposition many months later, Thomas’ wife testified that her husband’s condition had worsened over his last five days. She said that he had never been advised to go to the ER. Mr. P traced the patient’s history and physical from his chart entries. He said he had been waiting for the physician to assess the lab work and chest x-ray before taking action. After reiterating his findings from Thomas’ second visit, the physician testified that the patient had refused his advice to go to the ER. In addition, the physician pointed to a “case summary” that had been entered in the chart after he had been told that the patient had died, but the plaintiff lawyer doubted that this late entry accurately reflected what had happened during the second visit.

The plaintiff-expert physician was the next to testify. He said that the patient should have been sent to the ER on his first visit without waiting for the lab results and chest x-ray findings. In the expert’s opinion, Mr. P was not adequately supervised by the physician. The expert added that the patient’s condition on return to the clinic justified immediate hospitalization, rehydration, and IV antibiotics. These steps, he concluded, would have prevented the patient’s death early the next day.

Settlement negotiations between the parties failed, and the case headed for a jury trial more than two years after it had been filed. First, Thomas’ wife took the stand and told the jury about her husband’s rapid decline and the apparent neglect that he had suffered at the hands of his medical providers. She told the jury that she missed her husband greatly and felt she should be compensated for her loss. The expert internist testified next. In his opinion, Mr. P was undersupervised and, along with his supervising physician, had failed to provide adequate care. Next, the patient’s employer testified that he was a reliable worker and had been earning around $40,000 a year at the time of his death. By all appearances, the plaintiff lawyer seemed poised for a major victory.

One day later, the jury awarded the plaintiff damages of $428,000, with 57% of the blame assigned to Mr. P’s supervising physician (comparative negligence) and 43% assigned to the patient. The judge then added $14,000 in interest, raising the total award to just under $258,000.