Mr. N was a 42-year-old physician assistant working with one of the busiest neurosurgeons on the East Coast. Dr. V was well-known in the area, especially among members of the business community, as the person to see for a neurosurgical problem.

Passionate about his work, Mr. N focused on his primary responsibilities: assisting at surgery and tending to patients postoperatively. He rarely had to deal with insurance companies. The death of an insurance-industry executive following surgery, however, placed him front and center in a multimillion-dollar malpractice suit.

The patient, Mr. B, was a 52-year-old man who had been referred to Dr. V by a fellow neurologist. Mr. B had been suffering steadily worsening headaches for a year.

A CT scan showed a meningioma over the left cerebral hemisphere, and Dr. V advised removal. Mr. B’s health-insurance carrier approved the surgery without any protest.

After a standard preoperative workup, Mr. B was admitted to the hospital with no estimated discharge date. The next morning, during a two-hour procedure, a 4- × 6-cm meningioma was removed from the dura mater over the left hemisphere. Mr. B was then moved to the neurosurgical intensive care unit (NICU) for recovery.

Dr. V visited Mr. B for the initial postoperative check, followed by Mr. N during his regular postoperative rounds. From the PA’s point of view, the patient’s recovery was progressing normally until the morning of the second day after surgery. That’s when Mr. B lost consciousness and became unresponsive.

The NICU nurse paged Mr. N and started resuscitative measures to reduce brain swelling, but the patient’s condition deteriorated too rapidly. Two hours later, he herniated and was declared brain dead.

Dr. V blamed the death on an “intracerebral event,” such as a cerebral infarction or bleed. Several weeks later, the family sued the hospital, the neurosurgeon, and Mr. N.

From the outset, Mr. B’s widow insisted that she had noticed gradual changes in her husband’s condition. She blamed his death on the failure of the NICU nurses, Mr. N, and the neurosurgeon to detect these transformations. In addition to financial compensation, she wanted a written apology from Dr. V as well as an amendment to the procedures that NICU nurses follow.

The case proceeded through depositions, during which a parade of witnesses confirmed Mrs. B’s recollection of her husband’s gradual decline. According to the testimony of other relatives, these changes had been brought to the attention of the NICU nurses, but they ignored the family’s observations until it was too late.

Five prestigious neurosurgeons then lent their expert testimonies to the plaintiffs’ case. Each criticized the postoperative techniques and procedures, as well as the lack of adequate charting to reflect the patient’s level of consciousness. In the experts’ opinion, steps to reduce brain swelling should have been started much earlier. These included administering mannitol, ventilator support, and an operative ventriculostomy.

When it was Mr. N’s turn to be deposed, he soon found himself admitting that his observations were at odds with several of the relatives’ recollections and even with the nurses’ notes. He emerged from the eight-hour ordeal shaken and unsure of what he had admitted under the plaintiffs’ lawyer’s intense questioning.

After the depositions were complete, an insurance adjuster reviewed the case with the defense lawyers and decided that it was time to begin settlement negotiations.

At this point, the family announced that it would settle for a relatively low monetary amount, a written apology, and significant reforms in the hospital. Ultimately, the hospital instituted reforms in the care of postoperative neurosurgical patients, the defendants apologized in writing, and the insurance company paid $3.175 million.

Legal background

This settlement was hailed as a breakthrough in malpractice litigation. Afterward, the plaintiffs’ lawyer crowed that the settlement was for a “nominal amount” and that “nonmonetary factors” had prevailed. He was motivated, he said, principally by the desire to improve health care in the hospital and across the nation.

Regardless of the plaintiffs’ lawyer’s rhetorical trickery, malpractice litigation is frequently driven by greed. Only sweeping reform of malpractice litigation brought on by disastrous crises in health-care availability is likely to change this.

Protecting yourself

This case also highlights the importance of family relationships in the overall risk management of high-risk patients. Throughout their testimony, Mr. B’s relatives referred to the defendants’ unsympathetic and abrupt manner.

Specifically, they felt that the neurosurgeon did not provide adequate expressions of sympathy or explanations of what had happened. A detailed explanation of what went wrong medically and a sincere expression of regret can go a long way toward preventing a lawsuit.

Because he or she is often perceived as friendlier and less authoritarian than a physician, a PA can be more effective in communicating with the family after an adverse event.

Dr. Starr is a retired physician and lawyer in the Austin, Tex., area. His legal practice included defending clinicians in malpractice litigation.