Both the PA and her supervising physician thought the patient would recover with a promotility agent. They were wrong.

A physician assistant, Ms. D had been treating her next-door neighbor for five years for various mild complaints, the most significant of which was gastroesophageal reflux disease (GERD). As the medications available to treat GERD improved, she had switched from antacids to ranitidine and then to a proton pump inhibitor. Each time, the man improved for several months before the symptoms returned.

Over the next year, he developed mild hypertension, which Ms. D brought under control with medication. She also tried to persuade him to give up smoking but without success.


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One afternoon, he asked to see the physician, complaining of erectile dysfunction, for which the physician prescribed sildenafil (Viagra). At the same visit, Ms. D administered an ECG without noticing that the arm leads were inadvertently reversed. The physician interpreted the ECG as normal and sent the patient home.

A month later, the patient returned because the Viagra wasn’t working. He also complained of a “burning in the throat” that had begun the day before. Ms. D was unsure if this indicated GERD, so she asked the physician to see him. The clinician reviewed the ECG and again considered it “normal,” even though it showed the two arm leads had been reversed. He diagnosed a worsening reflux, gave the patient some cisapride (still widely available at the time), and asked him to call if there were further problems.

Two days later, the patient was back in the office complaining of more burning in the chest and throat. The physician told the patient he should go to a cardiologist to be checked further, but the man’s insurance company required a three-day wait for authorization.

Ms. D phoned the insurance company and was told the waiting period could be waived only in an emergency. The physician decided it was safe to wait the three days and sent the patient home with more cisapride.

That night the patient went to the emergency department and was admitted with an anteroseptal MI with low cardiac output and subsequent heart failure. His ejection fraction on later cardiac catheterization was 20%, and he required an implantable defibrillator to shock his heart back to a normal rhythm from time to time. Three months after his heart attack, the patient got his eye-popping hospital bill and decided it was time to visit a plaintiff’s lawyer.

The lawyer called for the patient’s chart and sent it to an expert internist, who reported that both Ms. D and the physician had committed malpractice in two ways: first, by not recognizing the “obvious cardiac symptoms,” and second by “failing to refer [the patient] to a cardiologist or emergency department.” The expert also pointed to the misread and misapplied ECG and said the test should have been repeated.

During depositions, the patient gave a heart-wrenching account of his present lifestyle, which consisted of sitting at home and watching TV because he was too short of breath to work or pursue outdoor activities.

Ms. D testified next. She worked her way through her notes in the chart, pointing out the times she had referred the patient to her supervising physician because of concern for the man’s condition. With his questions, the plaintiff’s lawyer tried to manipulate Ms. D into blaming the physician for the bad outcome, but Ms. D did not take the bait. She continued to testify that despite some reservations, she believed the patient’s problem was only GERD. She explained that, like the physician, she waited for the cisapride to work, and that can take as long as three days.

When asked if she could define the standard of care in that situation, she replied that she was “not a physician and was unsure exactly what the standard of care is.” She continued to testify only about what she saw, what she did, and how she applied her professional experience.

Shortly after her deposition, Ms. D was dropped from the case. When she asked her defense lawyer why, he shrugged his shoulders and replied: “Well, you were of no further use [to the plaintiff ].”

A month later, two months before trial, the case went to mediation with a retired judge who was adept at promoting settlement by pointing out the weaknesses of the case from both sides.

On the plaintiff’s side, the patient’s symptoms could be reasonably explained by worsening GERD, which both sides agreed the patient had; on the defense side, the patient’s present status was so pathetic that there was the danger of a “sympathy vote” by a soft-hearted jury. After six hours of mediation, the case settled, and the patient and his lawyer took home $2.5 million.

Legal background

In a malpractice case, the provider’s actions are judged against a theoretical “standard of care,” which a jury decides after listening to experts from both sides. In practice, that means the standard of care is whatever 12 jurors decide it is. It can vary dramatically from case to case, creating inconsistencies that remain a central problem with the present system of determining medical negligence.

Another problem for clinicians exemplified by this case is that after a lifetime of smoking and eating high-cholesterol foods, a patient can blame the provider for a bad outcome.

This may not seem fair, but a sympathetic jury and an effective plaintiff’s lawyer can combine to overlook the patient’s contribution to his own condition, a factor the insurance company took into account in recommending the settlement of this case.

Lessons learned

It takes considerable psychological energy to change a diagnosis, especially if therapy based on that diagnosis has already begun. The most effective strategy against this all-too-human hesitation is referral and collegial consultation, even with someone in the same office. A new pair of eyes can often observe the obvious when the original pair has failed to do so. In this case, Ms. D appropriately brought her doubts about GERD to her supervising physician, but he dropped the ball by failing to reconsider his previous diagnosis.

Many factors are in operation when a case settles. From a societal point of view, settling most cases out of court is a necessity, because there are not enough resources to permit every case to go to trial before a jury.

But the litigants often have emotionally vested positions. Settlement will not take place unless both parties understand that each has vulnerabilities that can lead to an unfavorable outcome, given the uncertainties of a jury trial.

A good mediator can convince both sides that it makes sense to settle, thereby saving time, money, and emotional energy. In this case, a veteran judge was able to point out the weaknesses of each side, bringing them together long enough to settle the case.