Before retiring from active duty, Mr. C spent 15 years as a medical corpsman in the U.S. Army. When he left the service, he decided to continue his career in medicine and became certified as a physician assistant. He enjoyed living in a rural area and was hired by a clinic in a small town. Mr. C soon discovered that his military and professional training did nothing to prepare him for his first experience with malpractice litigation.

The patient was a 58-year-old machinist. At their first meeting, he told Mr. C that he was taken to the ER after experiencing chest pain at work. The ER physician relieved the pain with a “GI cocktail.” The staff concluded that his discomfort was most likely gastric in origin. Mr. C was released with a diagnosis of gastroesophageal reflux disease (GERD) and started on proton pump inhibitor medication. The patient was also advised to follow up with his family physician, who would probably order a stress test to rule out CAD.

Not wasting any time, the patient arrived at Mr. C’s clinic the very next day. The staff physician took a detailed history and agreed with the diagnosis of GERD. He advised the patient to stop smoking, lose weight, and to make follow-up visits every month or so. Unfortunately, the man continued to smoke and did not lose weight, but he did come in to the clinic every couple of months for a checkup. He reported that his symptoms were under control, although his chest pain would recur from time to time. In general, he felt that the medication was effective, and Mr. C continued to renew the prescription.

One year following his visit to the ER, the patient collapsed while at work and died. An autopsy showing diffuse CAD prompted the man’s family to seek out a plaintiff lawyer. The lawyer called for the chart and forwarded it for expert analysis. When the analyst’s report was favorable toward his clients, the lawyer filed a malpractice suit against Mr. C and his supervising physician. Mr. C was accused of causing the patient’s death by failing to order a stress test. In the opinion of the plaintiff expert, this would have revealed the patient’s CAD and saved his life.

The case progressed through discovery and the exchange of documents before it was finally Mr. C’s turn to testify at deposition. Despite his rigorous military training and extensive combat experience, Mr. C was uneasy at the thought of presenting his case before a court reporter and a team of lawyers. Fortunately, his lawyer was able to calm him down before his testimony started. With sweaty palms and shaking hands, Mr. C managed to work his way through his chart entries and reconstruct the patient’s visits. After four hours, the deposition ended, and a relieved Mr. C returned to his clinical duties.

When the case went to trial three months later, Mr. C was once again placed under maximum psychological stress. This time, his anxiety was so great he could barely make it to the witness stand. He was eventually able to walk the jurors through his notes and explain the decisions he had made at each step of the clinical course. His supervising physician testified more calmly but less effectively about his own handling of the case. He told the jury that the patient reported improvement with the heartburn medication, and therefore, a stress test was not indicated at the time. The defense expert supported this explanation by blaming the patient’s heart attack on his continued smoking rather than the lack of a stress test.

The jury ruled that while Mr. C and his supervising physician had been negligent, the negligence had not been a substantial factor in the patient’s death.

Legal background

The discovery and depositional processes are intended to aid in the settlement of a lawsuit. In practice, they frequently represent an opportunity for the plaintiff lawyer to browbeat and bully a medical witness into accepting a settlement at any cost. Although Mr. C suffered from stage fright at his deposition and in the courtroom, his trepidation did not detract from his performance. In fact, his obvious discomfort may have enhanced his credibility in the eyes of the jurors by making him seem more human. Nevertheless, litigation remains a tremendous source of anxiety to providers. Unfortunately, it can last for years unless cut short by settlement. Providers involved in malpractice cases have reported loss of sleep, changing attitudes toward patients, preoccupation with the case to the point of distraction from patient care, and a general loss of quality of life. Countersuits in retaliation for “frivolous lawsuits” have met with little success so far. Since ease of litigation originates from the “open courts” policies of the present judicial system, there seems to be no remedy to the stress and time demands that litigation places on providers.

The jury in this case found negligence but no causation. The plaintiff lawyer must show substandard care, damages, and a link of causation between the two for the verdict to be valid. But jurors usually judge the case as a whole and tend to forgo the three-part analysis required in the judge’s instructions. Mr. C’s case was an exception insofar as other factors (i.e., smoking) beyond his and his supervising physician’s negligence had caused the patient’s death. Furthermore, the causative link between the negligence and the patient’s death had not been proven.

Risk-management principles

Primary-care clinicians are often asked to take over the routine care of patients who have recently completed a diagnostic workup or been treated for an acute condition that now requires long-term care. The implication is usually that the patient has been thoroughly worked up, and no further diagnostic tests are needed. But therein lays a trap, since a significant number of these patients will have unresolved clinical issues or even mistaken diagnoses. It is a good idea to take a few moments to review the patient’s chart when taking over care to ensure that everything is in order. Any red flags or inconsistencies should be discussed with the original provider to resolve any doubts as to what the conditions are to be treated or investigated. This also ensures the healthy communication necessary for effective risk management.

A number of patients are noncompliant in some areas of their health care, but when they get into trouble, plaintiff lawyers blame the provider whose advice the patient has chosen not to follow. To protect yourself and your coworkers against this type of attack, always make a short notation following each patient visit in which the specific problem is mentioned. A typical entry that you could expand on later might read, “disc[ussed] continued smoking. W[eigh]t still a prob[lem].” This should provide adequate evidence of continued concern about the patient’s health habits and that these habits were discussed to no avail.