Long days were nothing new for Mr. D, a physician assistant working for a family practitioner, Dr. M. To keep the clinic open for as many days as possible, the two providers took turns staffing the office.

But over the past few months, 
Mr. D had noticed that his “on” days seemed to be getting more numerous, and Dr. M’s hours were getting shorter.

On some level, Mr. D understood. He had been working for the physician since graduating school in his late 20s, and the doctor had been his mentor in many ways. But Dr. M was getting older and did not like working such long hours anymore.

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At first, the physician had started scheduling Mr. D for all the evening hours because he claimed he could no longer drive at night. Then, Mr. D got stuck working every weekend, because Dr. M was busy on the golf course preparing for his looming retirement.

And while Dr. M and Mr. D sometimes worked together in the office, it seemed to 
Mr. D that he was coming in far earlier and leaving far later than his employer, and the long hours were starting to catch up with him.

Adding to Mr. D’s frustration was the fact that his wife had just had their second child and needed his help at home, but he was often too tired to be of much use at the end of his shift. If it were not for the combination of his ambition and a terrible fear that he would not be able to find a new job, Mr. D would have quit long ago. But Mr. D felt loyal to Dr. M, and needed to maintain his steady income, so he lived with the increasingly long hours. 

Mr. D was working one evening when Ms. B came in. Although Dr. M had been in the office for a few hours earlier in the day, Mr. D was now covering the evening hours alone, and the waiting room was full of patients. Scanning the room, he could feel his stress level increasing as he asked the nurse to send Ms. B into the examination room.

Ms. B’s face was swollen and red, and she complained of two to three days of fever and runny nose, which she treated herself with an OTC decongestant. Mr. D looked at her face again. He diagnosed her with a viral infection and told her that it would go away in a day or two.

“Why is my face so swollen?” Ms. B asked.

“You are likely having an allergic reaction to a dye in the decongestant,” Mr. D explained. “It’s not uncommon. I will prescribe a mild steroid to help relieve the effects.”

He wrote the prescription and quickly ushered Ms. B out of the office, motioning for the next patient.

One day later, Ms. B called the office complaining that the facial swelling had not resolved. Dr. M, who was in the office at the time, took the call. He looked at the notes that Mr. D had written in the file, and told the patient that he would adjust her dose and call in another prescription. 

Two days after that, Mr. D got another phone call from the patient, still complaining of severe facial swelling, especially around the eyes. Mr. D increased her steroid dosage, and told her to call back in a few days. 

Ms. B never called back. In fact, Mr. D and Dr. M never heard from her again until several months later, when they received papers notifying them that they were being sued for medical malpractice for the failure to diagnose a bacterial infection. 

The lawsuit alleged that after the second call to the physician’s office, and despite the increased dosage of steroids, 
Ms. B’s face continued to swell as a result of an undiagnosed case of orbital cellulitis. By the time Ms. B arrived for treatment at the emergency department of her local hospital, she had lost sight in both eyes.

Ms. B was later declared permanently blind as a result of the extensive untreated bacterial infection around her eyes. When she found out her diagnosis, she hired an attorney and sued Dr. M’s practice and Mr. D. 

The two clinicians were horrified—Dr. M, because he’d managed to go his entire career without a malpractice lawsuit until now, and Mr. D because he was stricken with guilt. The pair met with the attorney provided by their malpractice insurer. She advised that they wait for the discovery process and then decide whether or not to settle out of court.

During the discovery process, it was revealed that Mr. D had spent only five minutes with the patient when she first came in for treatment. Ms. B was alleging that if Mr. D had ordered a simple blood test, it would have been obvious that she was suffering from a bacterial rather than a viral infection. 

“I believe we would be better off settling this case,” said the attorney. “Based on what I’ve seen, you do not stand a good chance of winning, and it would be better to avoid the bad publicity.”

Dr. M was reluctant to settle. He didn’t want this blemish on his record, and he didn’t feel as responsible, since he had only spoken with the patient once. The attorney explained the situation.

“As the supervisor of Mr. D, you are still responsible,” the attorney told Dr. M. “As the owner of the practice, you are still responsible. And if that weren’t enough, you never suggested that the patient come in for further evaluation when you spoke to her.”

Despite Dr. M’s grumbling, the attorney negotiated an out-of-court settlement of $2.4 million, the upper limits of the malpractice policy.

Legal background

As has been mentioned many times before, settling out of court is a good way to lower costly attorney fees when the odds of winning a case are slim. 

Defense attorneys who work for insurance companies are really working on behalf of the insurance company, not necessarily the physician. They will suggest whatever they think is most beneficial for the insurance company, and if settling prior to trial for a lump sum will be financially better for the insurer, the attorney will push for that. 

Protecting yourself

Mr. D let the pressure of his job distract him to the point that he was not focused on his patient. Practitioner appointments are getting shorter and shorter, but five minutes is really too short to completely assess a patient.

Had Mr. D spent more time with Ms. B, ordered a simple blood test, or even just responded with more urgency and thought to her phone calls, Ms. B might still have her vision. 

While diagnoses need to be made, and often quickly, that’s no excuse to pay minimal attention to a patient’s symptoms.

Ann Latner, JD, is a former criminal defense attorney and a freelance medical writer in Port Washington, N.Y.