Though Ms. J’s specialty was pediatrics, her first job out of graduate school was in a family practice clinic with mostly elderly patients. She did not particularly enjoy the work and was especially turned off by the seemingly relentless complaining of some patients.
One such patient was a 68-year-old woman with chronic Crohn’s disease. She regularly came to the clinic for chelation therapy to treat established atherosclerosis in her legs, which caused mild claudication and limited her walking distance to about 25 yards or less. At the time in question, she had received the third of five treatments of IV ethylenediaminetetraacetic acid and reported subjective improvement. Ms. J’s job was to help the patient up onto the exam table and prepare her for the IV infusion administered by the physician.
She showed the patient to the exam room as usual and guided her over to the table after she had changed into a hospital gown. As the woman strained to climb onto the table using a low stool, she grunted several times. (She later claimed that she had “cried out in pain” because Ms. J had “grabbed her by the ankle and twisted it sharply.”) Suspecting there was nothing out of the ordinary, Ms. J stood by the table as the physician came into the room and prepared the butterfly needle for the infusion. She left the room to tend to another patient and later returned to help the woman off the table and assist her in getting dressed. There was no further conversation, and the patient shuffled out of the office.
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The woman returned to the office for assessment one week later. She told Ms. J that her right ankle had been injured during the previous therapy session. She did not go into detail about exactly how her ankle had been injured, but she later asserted that Ms. J’s “grabbing and twisting”was to blame. The supervising physician examined the woman’s ankle and noticed some redness and swelling on the medial side just below the malleolus. He instructed the patient to keep an eye on it and discharged her.
After another week, Ms. J received a phone call from the patient’s family with the news that the woman had been taken to the emergency department where she was receiving IV antibiotics for an ankle infection. The patient was discharged from the hospital a few days later and returned to Ms. J’s clinic. She told the physician her cellulitis had resulted from an ankle sprain caused by Ms. J. After the visit, the physician called Ms. J aside and asked her about what had happened. Ms. J remembered nothing unusual about the incident. The supervising physician sensed a malpractice lawsuit in the making and braced himself for the ordeal. Several weeks later, he and Ms. J found themselves in a defense lawyer’s office explaining that the sprained-ankle accusation appeared only after the fact and that nothing had been noted at the time of the alleged injury.
As the depositions began, the plaintiff testified first. She explained that Ms. J had grabbed and twisted her ankle while helping her climb onto the exam table. The cellulitis had appeared shortly thereafter. She cited the supervising physician’s notes of her next office visit as support for her story. When it was Ms. J’s turn to testify, she responded to the plaintiff’s lawyer’s aggressive questioning with a simple response—no record of the incident could be found because it had never happened. Her supervising physician testified that he was not present when the alleged incident occurred. This led the plaintiff’s lawyer to amend his case to include an accusation that the physician had failed to properly supervise his staff, which in turn led to the patient’s injury. While the plaintiff’s expert agreed that the manipulation of the ankle had led to a sprain and cellulitis, the defense expert testified that to the contrary, the injury was likely acute inflammatory arthritis related to the patient’s Crohn’s disease. The case failed to settle and headed to trial.
The plaintiff’s lawyer began by presenting the patient, a suitably sympathetic figure, as she described the difficulties of her everyday life, many of which she blamed on Ms. J. This was followed by the plaintiff’s expert’s videotaped testimony.
Next, Ms. J pointed to the clinical notes taken at the time as an indication that no such incident had taken place. She was followed by her supervising physician, who contested the accusation of negligent supervision. He told the jury that he was on the premises and available if needed, which represented a sufficient level of supervision in his type of practice. The defense expert closed out the case by reiterating that the patient’s “infection” was a common side effect of Crohn’s and related autoimmune diseases. The jury retired to consider its verdict and later ruled that Ms. J and her supervising physician were not liable.
Legal background
As the population ages, the number of physical injuries incurred during office visits is bound to increase. These incidents are analogous to the slip-and-fall lawsuits faced by supermarkets, but they are usually couched in terms of malpractice because the likelihood of a sizeable insurance settlement or jury verdict is much higher.
Risk-management principles
Most large retail stores have formal risk-management programs in which an outside consultant walks through the facility and reviews physical plant and routine procedures to assess for potential hazards. A provider can do the same thing in his clinic. This will prove to be time well-spent as this type of lawsuit becomes more common, especially since tort reform has made conventional malpractice suits more difficult for plaintiff’s lawyers to file. The plaintiff’s lawyer in this case failed to reach the relatively high standard of proof required by jurors in malpractice cases. The defense’s victory can be largely attributed to Ms. J’s credible testimony and affable demeanor on the witness stand.
