Legal background

Failure to diagnose accounts for about 40% of all medical malpractice lawsuits. In this case, the jury found that Ms. B’s failure led to Mrs. Z’s impairment and the financial burdens of extensive medical and rehabilitation costs.

However, in the absence of additional symptoms, headache and runny nose can be signs of other conditions. According to Ms. B’s clinical notes, Mrs. Z did not have a fever—a typical sign of an infection—nor did she complain of eye or cheek pain, common symptoms of sinusitis. Even if Ms. B had recognized Mrs. Z’s condition as a sinus infection, was she wrong in her treatment? The plaintiff’s attorney made much of the fact that Ms. B had not prescribed antibiotics, but would that have been good medicine?

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The defense maintained that Ms. B’s “watch and wait” attitude was appropriate. If the patient’s condition didn’t improve, she was to return in a week for tests. The likelihood of a sinus infection spreading to the brain in that amount of time was so small that it was unreasonable to expect Ms. B to anticipate it.

The defense also refuted the plaintiff’s attorney’s claim that had Mrs. Z also been seen by one of the two supervising physicians, everything would have turned out differently. Both doctors completely stood behind their physician assistant, reiterating several times that they believed she had treated Mrs. Z adequately and appropriately.

In their turn, the two supervising physicians were found liable because they violated their own practice protocol, which stated that they would see every patient treated by their physician assistant. This protocol goes far beyond the supervision required by any state.

Cases such as this usually settle before trial. Insurance companies in particular will seek to resolve cases out of court if possible. In this case, the insurance carrier, like the physicians, believed in Ms. B’s professionalism as a physician assistant and viewed Mrs. Z’s situation as an unavoidable tragedy.

Protecting yourself

Ms. B might have protected herself by calling the patient after a day or two. Had there been no improvement, Ms. B might then have considered antibiotics. While it is unknown whether that would have prevented Mrs. Z’s tragedy, a jury might have been persuaded that Ms. B had done all that could be expected under the circumstances.

A more workable protocol for supervising Ms. B would have served Dr. L and Dr. K well. Clearly it is impossible—or at the very least impractical—for physicians to always be available to each patient.

Had their practice agreement stated that they would review Ms. B’s files at the end of each week or that they would have a weekly meeting to discuss patients with Ms. B, they might have avoided being named in this suit. Instead, they set an unreasonable requirement for themselves and were found liable when they were unable to follow through.

While it’s hard to protect against unpredictable adverse outcomes, it’s risky to insist on a trial when the patient can make a strong emotional appeal to a jury. Even under the best of circumstances for the defendants, a sympathetic patient with life-altering injuries often sways the jury.