For several years, Ms. M worked as a nurse’s aide in a large hospital while saving money to pay for college and, subsequently, physician assistant school. Upon graduation, she accepted a job in a city-supported community clinic and enjoyed looking after patients who would probably not get adequate medical care otherwise. For the most part, the clinic served ordinary working people who relied on inexpensive health care for themselves and their families.
One of her patients was a very active and athletic 15-year-old. He played several sports at the local high school and kept in shape by lifting weights in the off-season. He sometimes suffered from muscle strain or tears after an overly vigorous workout. One of several tender spots on his body was the right quadriceps muscle on the anterior surface of his thigh. The boy’s mother could feel a knot in her son’s leg and brought him to Ms. M to have the area examined. The patient complained that the muscle knot was tender, which would confirm that it was an area of injury and probable scarring. Ms. M prescribed moist packs, ice after exercise, and ibuprofen. Later, a plaintiff lawyer would allege that the knot was the beginning of a Ewing’s sarcoma, which could have been cured if it had been recognized earlier.
The patient returned with his father a few days later and reported to Ms. M that the pain had worsened. In addition, he had developed a “lump” where the knot used to be. His father requested an x-ray of the area to “see what [the lump] was.” Ms. M explained that muscle tears can cause scarring, but any “lumps” would not show up on an x-ray. She advised the father and son to continue the treatment prescribed previously and “give it a chance.”
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On his third visit to Ms. M’s clinic three weeks later, the boy complained of the same pain and told her that the lump had grown. Ms. M examined his leg and disagreed, advising him to wait a little longer before moving on to some other treatment. She offered to take an x-ray if the situation didn’t improve within the next few weeks.
Three months later, the boy was rushed to the ER with severe pain. An ER physician felt the lump in his leg, took an x-ray, and diagnosed a bone tumor, which was later found to be Ewing’s sarcoma of the right femur. The patient underwent aggressive treatment for five years before dying of cancer. The family filed a malpractice suit against Ms. M and her employer. She and her supervising physician received the court papers late one afternoon in the clinic waiting room. The process server handed her the papers and walked away, but it took Ms. M several minutes to understand what had happened.
The case started with six months of discovery before moving on to a period of depositions, during which Ms. M worked her way through the medical chart and explained her management and clinical reasoning. Because she believed that the lump in the patient’s leg was scarring from a muscle tear, she had elected to give the swelling enough time to resolve on its own before ordering x-rays or referring the patient. Ms. M had not consulted her supervising physician on the case because he worked across town and was not readily available.
Her deposition was followed by that of the defense expert, who argued that the tumor may well have appeared in the intervening three months after the patient was seen last. There was no indication that an earlier x-ray or referral would have brought about a better result in this extremely aggressive form of cancer. The plaintiff expert testified that the Ewing’s tumor was diagnosed within minutes of the patient’s being seen in the ER, and that an x-ray would have likely brought about an earlier diagnosis and more successful treatment. He was of the opinion that three visits for the same problem should have been managed with referral (or at least consultation with the supervising physician).
Following the depositions, the defense lawyers and the insurance adjuster met and decided to settle the case. After some negotiation, the plaintiff lawyer agreed to a settlement of $100,000. Ms. M took a brief vacation to collect herself before going back to work in the community clinic.
Legal background
Although it has been exhaustively discussed, the precise amount of contact required to satisfy the supervision requirement of state licensure for PAs has never been accurately defined. Considering their experience, training, and desire for clinical independence, most PAs have a sufficiently close relationship with their supervising physician to be effective. Perhaps surprisingly, supervision has not evolved into a major legal concern, due in part to juror recognition of the increasingly important role played by PAs in modern health care.
The standard of care for PAs should be set by expert testimony from another PA, but judges have routinely allowed specialist physicians to set the standard in their testimony for the plaintiff. Predictably, this has led to the standard being set higher (closer to that for specialists).
Risk-management principles
Depending on your point of view, patients returning for the same complaint can be viewed a number of ways. While it is tempting to assume that patients or their families are just working out their anxiety on an unresolved situation, the risk manager sees the return visit as an opportunity to review the case and correct any mistakes made on the first visit. Psychological studies show that there are considerable barriers to
revising a diagnosis. Good risk management encourages clinicians to take the opportunity to revisit previous conclusions with fresh perspective and, if possible, to seek consultation with a colleague to check findings and conclusions. In Ms. M’s case, this might have avoided the “blinders” problem and prevented a missed diagnosis.
When liability is fairly clear, especially if the patient is sympathetic, it is appropriate to consider settlement in the early stages of the case. While sometimes criticized because it encourages plaintiff lawyers to sue and settle, this approach can still offer several advantages. First, settlement removes uncertainty from the situation for the plaintiff lawyer, the patient, and the insurance company. The defending provider is notably absent from this list, although settlement tends to shorten the litigation ordeal. Second, settlement allows a structured payout, which is cheaper for the insurance company and provides money to the injured patient when it is needed. This is especially important in cases of children with severe disabilities. Absent such safeguards, these large settlements are frequently spent by the families within just a few years. Third, a fair settlement based on the market value of the case offers considerable efficiency and time savings over the traditional jury trial as a method of resolution. In many cases, settlement negotiations are facilitated by the actions of a mediator in a structured environment.
