Trained as a paramedic in the military, Mr. D had gone on to become a physician assistant after leaving the service. He enjoyed his job and the stability it offered. At the family clinic in the Midwest where Mr. D worked, he was known as an enthusiastic employee who would gladly step in whenever and wherever he was needed. 

Recently, Mr. D treated a man in his mid-30s who had applied for life insurance and was required to undergo a full physical with blood work before the policy could be issued. The two enjoyed a pleasant conversation as Mr. D performed the examination, after which he declared the patient to be in excellent health. Mr. D then began preparing for the required blood work, which included a fasting blood glucose, lipid profile, and complete blood count. With the blood drawn, Mr. D applied a dressing and wished the patient good luck as he discharged him. 

Nothing more was heard regarding the patient until he returned to the office three days later complaining of a swollen, inflamed elbow. The patient was seen by Mr. D’s supervising physician, who diagnosed cellulitis starting in the olecranon bursa and spreading rapidly to the surrounding tissues. The patient was admitted to the local hospital for IV antibiotics. Cultures showed group A streptococci, which were treated with amoxicillin. In the hospital, things got worse. The patient had an allergic reaction to the antibiotics and developed a fever and rash that lasted for more than 12 hours. When the amoxicillin was stopped and replaced with erythromycin, the infection gradually resolved. Because of tissue damage, the area required one round of drainage and debridement during the patient’s hospital stay. After discharge, he remained on oral antibiotics. 

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Once the infection resolved, the patient consulted a plaintiff lawyer, who called for the chart and had it reviewed by an infectious disease expert. The expert reported that the infection must have been caused by nonsterile technique on the part of Mr. D. The plaintiff lawyer filed a malpractice lawsuit against Mr. D, his supervising physician, and the clinic.

Within six months, the case had moved into the depositional phase. Although Mr. D stated that he always wore gloves during phlebotomy (for his own protection as well as the patient’s), the plaintiff testified that the clinician was not wearing gloves when he drew the blood. The patient’s wife testified that her husband’s pain had kept him from her during the infection and claimed damages for loss of consortium.

Next, the plaintiff expert reiterated his belief that the infection was likely due to Mr. D’s poor technique. In fact, he denied any other possibility. The defense expert responded that the infection was group A strep, and the literature contained no reports of infections with this organism after phlebotomy. He felt that the infection, although serious, was not related to the earlier blood draw by Mr. D. Finally, Mr. D’s supervising physician testified that it was the clinic’s policy for providers to wear gloves and use sterile technique when taking blood. As far as he knew, Mr. D always followed this practice. The case headed to trial after attempts at settlement failed. 

At trial, the plaintiff lawyer took great care to exclude small-business owners and those with medical knowledge or experience as jurors, since they could become “opinion leaders” and provide independent information. Similarly, the defense lawyer excluded government employees, those on welfare or disability, and one woman who worked for a legal firm. Once chosen, the jury of 12 sat in judgment throughout the five-day trial. Jurors listened impassively to the witnesses and watched the videotaped depositions of the experts. At the end, they heard the lawyers sum up for their respective clients and left the courtroom to consider their verdict, armed with instructions from the judge. The jury returned the next day with an award of $205,000 in damages (including $20,000 to the patient’s wife for loss of consortium).

Legal background

Jurors are supposed to represent the views and judgment of the community, but this is rarely reflected in reality. While large segments of the population are excluded from jury duty because of unavailability, others, such as retired people, government workers, and the unemployed, are overrepresented. In addition, lawyers use their “peremptory” challenges to strike jurors for a number of reasons, usually based on generalizations and preconceptions about groups in the area. Authorities are concerned because many citizens try to avoid jury duty at all costs, and this can become burdensome in long cases. Historically, the jury system is a product of our Constitution and grew out of discontent with British-appointed judges at the time of the American Revolution. Plans to abolish the jury system for malpractice cases in favor of a panel of experts have met with stiff resistance from many groups, including lawyers’ associations.

Other suggested solutions range from “confession statutes,” in which the clinician has to volunteer any possible medical errors that may have occurred, to no-fault insurance plans modeled on New Zealand’s “Injury Compensation Scheme.” What we are more likely to see is a collection of minor adjustments to the system, such as requiring an expert opinion before a lawsuit is filed, mandating better-qualified expert witnesses, limiting jury awards for pain and suffering, and having stricter statutes of limitation for medical malpractice cases. The driving forces behind these changes are not clinician anguish or the inefficiencies and inequities of the legal system, but the more pragmatic problem of malpractice insurance availability and the influence that insurance companies have in the legislatures. However, surprisingly effective solutions can emerge from the witches’ brew that is politics.

Risk-management principles

It can be difficult to persuade a jury that practice protocols were followed. In this case, Mr. D testified that he used sterile gloves in accordance with clinic policy, and his testimony was supported by his supervising physician. The medical records, as one might expect, were silent on this point. After hearing about the patient’s elbow infection and resulting disability, the jury chose to believe Mr. D, at least to some degree, awarding the plaintiff a relatively modest amount. 

This case raises the question of distinguishing a poor outcome, which both sides recognized, from malpractice causing medical damages to a patient. Plaintiff lawyers have worked hard to confuse these two situations. When faced with a poor clinical outcome, many jurors assume malpractice until proven otherwise. This assumption unfortunately reverses the burden of proof, which should fall on the plaintiff, and passes it on to the medical defendant to justify his or her actions. Mr. D effectively demonstrated his technique at trial but failed to convince the jury beyond a doubt that he used this during the procedure. Two risk-management techniques might have helped him: doing the phlebotomy in the presence of another staff member; and describing his technique to the patient as he progressed through the procedure. This distracts the patient and serves as a memory aid that proper sterile technique is being followed.