Ms. H was a physician assistant in a busy family practice. Her job frequently required her to assess patients’ symptoms and then call on her supervising physicians if something out of the ordinary was detected. This system was generally effective thanks to Ms. H’s experience and clinical acumen. But, of course, there are always exceptions.
One of Ms. H’s patients was a 49-year-old truck driver. He was a heavy smoker and had been coming to the clinic for more than 20 years. Ms. H had treated him for various acute illnesses, but none of these had been serious. On one occasion, he came to the clinic following episodes of severe pain in his lower chest. The pain lasted approximately two minutes and caused him to break into a sweat. Alert to the possibility of CAD, Ms. H brought the case to the attention of her supervising physician, who ordered an ECG. While the results were interpreted as normal, the plaintiff’s expert cardiologists would later testify that the ST-segment changes were “clearly abnormal” and merited referral or close follow-up. Ms. H’s supervising physician reassured the patient and his wife that the ECG showed only minor changes and that the chest pain was probably caused by gastritis. Ms. H had her doubts but deferred to the physician (who had taken over the care of the patient). The man was discharged with instructions to return to the clinic if he experienced further problems.
The patient underwent hip-replacement surgery two months later. As part of his preoperative assessment, a hospital internist reviewed his ECG, read it as “minor ST-segment abnormalities,” and cleared him for surgery. The patient made it through the procedure but died three days later from “a massive heart attack.” An autopsy revealed that his left anterior descending coronary artery was 90% blocked with atheroma and contained a fresh clot. The patient’s wife consulted a plaintiff’s lawyer, who filed a malpractice suit against Ms. H’s supervising physician, the hospital internist, and the hospital itself. Ms. H was working on the day the court papers were served and noticed that the physicians responded with skepticism. In their minds, the ECG was normal and the case baseless.
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The plaintiff’s lawyer’s experts testified that the ECG taken in the clinic was “clearly abnormal” and that the symptoms and ECG had been misinterpreted by the defendants, resulting in the patient’s death. The physicians were blamed for not referring the patient to a cardiologist.
The patient’s wife tried to make her husband as sympathetic a figure as possible. After 30 years of working as a truck driver, he was looking forward to retiring soon. In fact, he had taken a second job in order to buy a condominium in Florida for himself and his wife. This idyllic dream was halted by his premature death, which the experts blamed on the physicians involved. After reviewing the deposition testimony, the hospital settled on behalf of itself and the internist. The plaintiff’s lawyer offered to settle the case against Ms. H’s supervising physician for his policy limit of $1 million, but the insurance company declined. The case proceeded to trial.
At trial, all the experts appeared via videotape except for the defense witness, who appeared in person. The defense lawyer thought this would add to his credibility. For this indulgence, he charged the defense $7,000, an amount that stunned the members of the jury (and likely figured significantly in their verdict). The plaintiff’s lawyer told the jurors that this exorbitant payment was an indication that the defense’s case was so weak that it required shoring up with expensive testimony. Ms. H’s supervising physician testified that the diagnosis of gastritis was reasonable under the circumstances and that the equivocal changes on the ECG did not justify referral to a cardiologist or a stress test.
The jury retired to consider its verdict. Five hours later, the plaintiff was awarded $10 million, with $6 million of that allocated to the widow for loss of consortium. Ms. H’s supervising physician considered declaring bankruptcy but agreed to a 10-year payment schedule.
Legal background
In a medical malpractice case, the jury is supposed to collect objective evidence from the experts and other witnesses to determine whether a clinician was negligent before considering damages. In a case with a sympathetic patient, the plaintiff’s lawyer often tries to combine all the considerations (emotional and objective, fault and damages) into one amorphous lump to present to the jury. Responding with emotion is the natural reaction of lay jurors who are asked to decide technical matters beyond their training and experience (e.g., the interpretation of marginal ECG changes).
The role of expert witnesses in medical trials is troubling. Plaintiff’s lawyers would like to promote the idea that there are clinicians who testify with the desire to help uphold high standards of medical practice, yet most expert witnesses do so for more selfish reasons (i.e., ego or money). A federal judge has called for the reassessment of the role of professional medical experts in asbestosis and silicosis litigation because of multiple, flagrant inconsistencies in testimony. This has sent shock waves through the community of plaintiff’s lawyers plying their trade in medical class-action suits.
Risk-management principles
While symptoms in some patients with CAD are clear and unequivocal, others are marginal and difficult to distinguish from other types of pain. Recent awareness of the high incidence of atypical chest pain in women has led to more frequent testing and an appreciation of a higher incidence of CAD in women than was previously realized. Because this is a hot topic among plaintiff’s lawyers, providers are pressured to refer these patients for cardiologic investigation to cover the possibility that the atypical symptom is actually CAD. It is difficult to practice cost-effective medicine under these circumstances, but jurors have made it clear that saving money is not at the top of their list (or even on their list).
Providers are sometimes placed in the difficult position of disagreeing with a clinical decision made by a supervising physician. In this case, Ms. H had mixed feelings about attributing the patient’s chest pain to gastritis. If left on her own, she would likely have referred the patient for cardiology assessment, thus passing the responsibility on to the specialist. This is a rational response to the current litigation climate. As far as a disagreement with a supervising physician is concerned, a lot depends on the relationship you share. Some providers have a good relationship with their physician, and a polite difference of opinion is enough to raise the issue of alternative approaches to a clinical problem. In other cases, pride and ego get in the way of any constructive criticism. In a few cases, the differences in management styles are so great that basic professional respect is absent. In this kind of situation, looking for another job may be the only effective solution.
