Mr. B, aged 45 years, was a physician assistant who was assigned to the emergency department (ED) of a hospital. He had been employed by the hospital for a decade and working with the same physicians for some time. The group of health care practitioners had developed a comfortable routine and treated each other with respect.


One afternoon, a patient, Mr. S, aged 54 years, presented to the ED. He explained to Mr. B that two days earlier he had been to see his primary care provider (PCP) for stomach pain, poor appetite, constipation, and urinary symptoms. His PCP, Dr. Y, aged 60 years, suspected diverticulitis and arranged for the patient to go to the hospital (the same one he was now in) for an outpatient CT scan. After completing the scan, the patient went home. 


Shortly thereafter, the radiologist reading the CT scan results shared his impression with 
Dr. Y. The radiologist told her that “the findings were consistent with acute diverticulitis.” Dr. Y immediately called her patient, and was disturbed to find that he had gone home and not been admitted to the hospital. According to the patient, Dr. Y told Mr. S that based on his symptoms and the severity of the scan results, he should have been admitted to the hospital. She told Mr. S to immediately go to the hospital ED, where he was now being seen by Mr. B.


“Maybe you want to talk to the radiologist?” the patient timidly asked Mr. B.


Mr. B, who was examining the patient after these events, told him that he would contact the PCP instead. He then stepped out of the room for a minute. When he returned, the patient was on the phone with his PCP, who had apparently called the patient’s cell phone to find out how he was doing. It appeared to Mr. B that the physician was browbeating the patient about what should be happening in the ED, and the patient looked uncomfortable. 


After a few minutes, the patient held the phone out to Mr. B, who then began speaking with 
Dr. Y. “Why haven’t you admitted my patient yet!?” Dr. Y angrily demanded. “I don’t understand why he ever was allowed to leave your radiology clinic in the first place!”


Mr. B became irritated, but he calmly spoke to Dr. Y about the patient, listened to her recommendations (which sounded more like demands to him), and extricated himself from the phone call. 


Based on his examination of the patient, Mr. B did not believe it was necessary for Mr. S to be admitted to the hospital, and the clinician sent the patient home that evening with prescriptions for metronidazole and ciprofloxacin, restrictions to adhere to a clear liquid diet for 24 hours, and instructions to contact his PCP in two to four days. Mr. B then took the patient’s file to his supervising physician in the ED who glanced at it briefly and signed off on the exam and discharge. 


The next day, Mr. S began to feel worse and by late afternoon, he returned to the ED. This time, an examination revealed a low-grade temperature, severe abdominal pain with peritonitis in all four quadrants, and a white blood count of 25,000. Another CT scan revealed worsened inflammatory changes and intra-abdominal free air with free fluid. Emergency surgery followed and revealed that Mr. S had a large mass in the left lower quadrant that contained the site of a perforation with numerous diverticula suggestive of a perforated sigmoid diverticulitis. The surgeon performed a sigmoid colectomy and colostomy. The patient remained in the hospital’s intensive care unit for a week before being moved to recovery. He required subsequent surgery to reverse the colostomy and was left with permanent restrictions on his activities.


Once he was home from the hospital, he spoke to Dr. Y, who told him that she believed the hospital and Mr. B had erred in not admitting Mr. S when he first appeared in the ED. She thought the patient should consult with a malpractice attorney. Mr. B did so, and the attorney, after reviewing all of the records, asked Mr. B whether he had been examined by a physician on that first visit to the ED. 


“No,” Mr. S replied, “the only one who examined me was Mr. B.”


“What about this physician who signed off on your discharge/diagnosis?,” the attorney asked. 


Mr. S reiterated that only Mr. B examined him, and he never saw the physician who signed off on his medical records. Based on this, the attorney decided that Mr. S had a case and filed a lawsuit against the hospital, Mr. B, and the supervising physician based on their failure to admit Mr. S to the hospital and begin appropriate intravenous antibiotic therapy. The attorney argued that the delay in treatment was the cause of the patient’s drastic colon resection surgery and subsequent complications. 


Mr. B was notified about the lawsuit, and he met with the defense attorney who was assigned by his insurance company. The attorney went through the facts with Mr. B. 


“Is it normal for you to examine a patient and make a diagnosis and for the supervising physician to just sign off without actually seeing the patient?” the attorney asked.


“We’re very busy in the ED,” Mr. B said. “Technically speaking, the supervising physician is supposed to see the patient as well, but there often isn’t time.”


The case proceeded through the discovery phase, and depositions were taken. A trial was scheduled, and jurors were chosen, but before the case could go to trial, the hospital offered to settle out of court. The case was resolved for an undisclosed sum.


Legal background


Experiencing a bad outcome is not proof of medical malpractice. What creates a case for medical malpractice is when a provider’s negligence causes injury or damages. The plaintiff’s argument in this case would have been that Mr. B failed to appropriately assess the urgent nature of the patient’s condition, order appropriate treatment, admit the patient to the hospital so he could get the care he needed, and ask the supervising physician to examine the patient. Taken together, these arguments would likely have made a convincing argument for the jury.


Protecting yourself


Know the rules of your state and your clinical practice: If, in your practice setting, a physician is required to examine the patient as well, make sure that happens. For his part, the supervising physician was wrong to sign off on the file without seeing the patient or discussing the case with Mr. B. 


Mr. B may have been influenced by what he perceived as a “nagging” call from Mr. S’s physician. While it is understandable that Mr. B found the physician rude, this did not mean that he should have discounted her opinion, since she knew the patient and his situation better than anyone.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.