A previous bleeding ulcer and fear of a COX-2 inhibitor leads to an NSAID.It was a fateful choice.

Mr. G, age 38, had been a nurse practitioner in a clinic for eight years. Although most of his time was spent on follow-up visits, he saw new patients occasionally and looked forward to them as a chance to exercise his diagnostic skills. In this case, an established patient with a new problem entangled him in a malpractice suit.

The patient was a 55-year-old man with a distant history of bleeding ulcer caused by ibuprofen. He presented with a painful shoulder, which proved to be a subacromial bursitis.

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Mr. G faced a dilemma. At the time, COX-2 inhibitors (including rofecoxib [Vioxx]) were available but under a cloud, and it was the clinic’s policy not to prescribe them for fear of complications. Mr. G consulted his supervising physician, who told him: “Diclofenac (Cataflam) is a good alternative. Try that.”

But Cataflam can also cause gastric bleeding. According to his later testimony, Mr. G advised the patient to use the medication “sparingly” in view of his past history. The patient claimed he was not told that Cataflam was a nonsteroidal anti-inflammatory drug (NSAID) and would not have agreed to try it had he known.

Nevertheless, the man took the drug on an as-needed basis to control his bursitis symptoms. After nine months, he sought care in a local emergency department and was admitted to the hospital for severe abdominal pain. Endoscopy revealed a bleeding duodenal ulcer, which required blood transfusions and surgery.

He was discharged from the hospital after a week. When he had recovered from the surgery —and the shock of the hospital bill—he consulted a plaintiff’s lawyer about suing Mr. G and the supervising physician for “causing his bleeding ulcer.”

The lawyer called for the chart and had it reviewed by an expert internist, who rendered his report within 48 hours, as his Web site promised. He condemned the use of any NSAID in this case because of the medical history and established a direct causal link between the use of Cataflam and the patient’s bleeding ulcer. The plaintiff’s lawyer then filed his lawsuit.

Mr. G was shocked when he received the summons. He had never been sued before. But his supervising physician reassured him: “It’s just part of medical practice these days. Let the lawyers take care of it.”

The case proceeded through paper discovery to the deposition phase approximately one year after filing. The plaintiff’s expert held to his position that Mr. G should not have prescribed an NSAID to a patient with a known history of bleeding ulcer.

The patient, at his deposition, said “no one told me nothing.” He grudgingly admitted that the Cataflam was effective in treating his shoulder bursitis but denied that Mr. G had cautioned him to “use it sparingly.”

Next, Mr. G underwent a grueling interrogation by the plaintiff’s lawyer, starting with his training, education, background, and experience. By lunchtime, the lawyer was just getting warmed up and started into the meat of the case.

Mr. G stayed calm and worked his way through the chart entries as best he could. For each visit, he reconstructed details by combining a description of his usual practice and his notes from the specific encounter. Fortunately, he was an adept note-taker, using an electronic medical record (EMR) system. As a result, his records were impressive evidence of his clinical thoroughness.

When he came to the critical question of whether he had explained that Cataflam was an NSAID, the same class of anti-inflammatory medication that had caused problems for the patient before, Mr. G said he thought that he had, but he had not noted it in the chart. He was sure, however, that he had told the patient to use the medication “sparingly” and showed the plaintiff’s lawyer the relevant notation.

Asked about the choice of NSAID, Mr. G explained that his supervising physician had recommended it, but he agreed Cataflam was the best choice under the circumstances. It had a reputation for being better tolerated than other NSAIDs.

The supervising physician was next. He supported Mr. G’s testimony by confirming his recommendation and the reason for it. When asked why he believed that Cataflam was better-tolerated, he answered: “Personal experience and other physicians.” The plaintiff’s lawyer pressed for references to scientific papers, but the doctor kept repeating his source: “Personal experience, other physicians.” Later an expert testifying for the defense confirmed that actual studies supported the supervising physician’s clinical impression.

The case failed to settle because the two sides were so far apart in their valuation of damages; the plaintiff’s lawyer claimed $2 million, and the defense offered $25,000. As negotiation was impractical, the case went to trial.

The parties repeated their deposition testimony in court. Mr. G sat quietly while the patient looked to the jury for sympathy as he told them that he was “never warned” that Cataflam was an NSAID that could start him bleeding again. In his own testimony, Mr. G worked his way through the chart, explaining each entry.

The experts appeared via videotape and were not required to attend the trial. Mr. G envied them. Although he could think of a thousand things he would rather be doing, he followed his lawyer’s advice to attend every day, for the full day, in order to be credible with the jury. In the end, the jury deliberated for five hours and returned a verdict in favor of Mr. G and the supervising physician.

Legal background

The deposition is a unique part of the American justice system. It is possible only in a nation that devotes unlimited time and energy to litigation. While depositions are intended for discovery and clarification of facts, they are more often used to bully and intimidate witnesses and to form legal strategy.

Protecting yourself

Depositions allow the lawyers to probe witnesses for weaknesses in their testimony and to try to trap them into admissions that will hurt them at trial. A common strategy is to ask a health-care provider for scientific references to support an asserted fact. The citation can then be criticized by the plaintiff’s expert, with a view toward casting doubt on the provider’s credibility and negating the testimony at trial.

One way to avoid this trap is to trace the source of a clinical practice to professional experience rather than scientific research, as the supervising physician did in this case. Many providers want to demonstrate the scope of their knowledge by citing the literature when challenged, but scientific support for a clinical practice is best left to defense experts. As academic physicians, they are more familiar with the latest research and can discuss its strengths and weaknesses in detail.