Mrs. W waited an additional 10 days before going to the local ED. The infection was verified, and surgery became necessary to debride the wound. A portion of the patient’s sternum also had to be removed.

After recovering, Mrs. W contacted the Physician Medical Review Board and lodged a complaint against Ms. N and the surgeon. She alleged that they had been negligent and had not maintained standards of care. The Review Board investigated and dismissed the complaint, claiming that there was no evidence of wrongdoing or negligence. Despite this, Mrs. W found an attorney willing to file suit against Ms. N and the physician.

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Ms. N was forced to take several days off of work to meet with her attorney and go through the deposition process. The attorney filed a motion to dismiss, which was granted. Mrs. W appealed the decision, and an appeals court examined the case.

The appeals court had to determine whether Ms. N had failed to observe the applicable standards of care in her conversation with Mrs. W and whether she had misled the patient or made any statements that could have contributed to Mrs. W’s complications. The appeals court ultimately decided that Ms. N’s performance was appropriate. Her responsibility to Mrs. W was to advise her of the medical condition present (a septic infection), make recommendations for treatment (return to the medical center), inform her of consequences of not being treated, and present alternatives. Ms. N fulfilled her duty to the patient, and the appeals court dismissed the case.

Legal background

This case demonstrates the necessity of malpractice insurance. Even prudent clinicians risk being sued by disgruntled patients, and there is always an attorney willing to take on a case no matter how flimsy the evidence. It is a constitutional right to file a lawsuit for real or perceived losses, and there will always be those who take advantage of that right. Lawsuits are extremely costly, especially for the defendant. A plaintiff’s attorney will often take a case on a contingency basis, meaning he or she will be paid only if the plaintiff wins the case. The defendant, however, has to pay the cost of a defense attorney. Other costs of lawsuits include missed work, stress, and sometimes damage to one’s reputation.

You can never completely prevent a lawsuit, but arming yourself with insurance can at least protect you from being financially wiped out by the process.

Protecting yourself

As the appellate court noted, Ms. N handled the situation in an appropriate manner. She covered all the necessary bases when talking to Mrs. W. It is essential when speaking to a patient on the phone, especially a difficult patient, to be very clear about the situation. The patient should be told what the issue is, what he or she should do, and the consequences of not following the instructions. Obviously there are instances when a face-to-face discussion is more appropriate. But when faced with a patient who refuses to come in, it may become necessary to fully explain the situation and the possible outcome over the phone to protect yourself from liability. 

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