Mr. A was a physician assistant who worked for a solo general practitioner, Dr. V. Over the past five years, Dr. V had been giving Mr. A more responsibility and autonomy. They often saw patients separately but tried to make time to discuss challenging cases at the end of the day and share information.

Ms. D, aged 54 years, had been seen on and off for several years for complaints of migraines with visual disturbances. Her BP was 130/90 mm Hg and total cholesterol 220 mg/dL. Ms D’s BMI of 26.6 put her in the overweight category—but neither Dr. V nor Mr. A had been successful in getting her to lose weight or make other lifestyle changes to improve her health. Because she was uninsured, the clinicians also had trouble getting Ms. D to come back for regular appointments.

Mr. A treated the patient one day. When asked how she was doing, Ms. D replied, “Not great. I’ve been feeling kind of weak on my left side, and my face is a little numb. Also, sometimes the wrong word comes out when I’m talking or I’ll forget what I’m trying to say.”

Mr. A made a note of the unilateral weakness, numbness, and aphasia in the patient’s file.

Mr. A explained the situation to Dr. V and added, “You might want to take a look at her as well. Her complaints concern me.” The physician agreed and examined Ms. D. Following the exam, he ordered a brain MRI and gave the patient a referral to a neurologist. Later that afternoon, the two clinicians discussed Ms. D’s case.

“I’m worried the neurologist won’t see her because of her lack of insurance. I’d like to make sure he understands the importance of the situation,” said the physician. “Call him tomorrow and fill him in on the case.” Mr. A made the call to the neurologist, explained the situation, and recorded the call in Ms. D’s file.

Ms. D went for her brain MRI and then saw the neurologist six weeks after her appointment with Dr. V. The neurologist told her that the MRI was normal and sent her home. Two weeks later, Ms. D suffered a major right-sided stroke that left her neurologically compromised on the left side of her body. Ms. D’s carotid artery was almost totally blocked. After her stroke, physicians at the hospital where she was being treated placed a stent to open up the blocked artery and restored blood flow to Ms. D’s brain. However, Ms. D was left permanently impaired.

At the urging of her family, and Ms. D hired a plaintiff’s attorney. A malpractice suit was filed against everyone involved in her care; the neurologist, Dr. V, and Mr. A. At trial, the plaintiff alleged that Dr. V and the neurologist should have ordered an ultrasound of her carotid artery considering her complaints and risk factors for stroke (hypertension, overweight, elevated cholesterol, and cigarette smoking). She introduced testimony of an expert radiologist who examined the brain MRI results and opined that they revealed abnormalities consistent with transient ischemic attacks—precursors to a stroke.

The neurologist argued that he had no knowledge of Ms. D’s symptoms and history. Had he known about the unilateral weakness and other symptoms, he would have ordered an ultrasound.

“That’s simply not true,” Mr. A told his attorney during a break. “I called the neurologist. I told him about the symptoms and the necessity to see this patient.”

When the trial resumed, Mr. A testified that he had called the neurologist and conveyed the information about the patient’s symptoms, the fact that she didn’t have insurance, and Dr. V’s concern that she be seen regardless. Mr. A offered the patient’s file with his note about the call into evidence. Dr. V corroborated Mr. A’s testimony and explained that it was the neurologist’s responsibility to order the proper tests.

In the end, the jurors exonerated Mr. A and Dr. V and found the neurologist liable, awarding Ms. D $150,000. The jurors also found Ms. D contributorily negligent for not telling the neurologist about her symptoms and reduced the award by 30% (the amount they felt she had contributed to her own injury).

Legal background

It is not unusual for defendants to turn against each other in assigning blame for the plaintiff’s injury. Unless it is clear that the defendants have the same story, it is never a good idea for the same attorney to represent codefendants. Mr. A was outraged by the neurologist’s testimony, but memories can be faulty. Whether the neurologist did not recall the conversation or simply chose to ignore the oath to tell the truth does not matter. In the end, the jury is faced with two different stories and will ultimately have to decide which one to believe.

Protecting yourself

This is another case in which good recordkeeping may have made all the difference. The fact that Mr. A took the time to note in the patient’s file that he had called the neurologist could have been the deciding factor for the jury when trying to decide whom to believe. Such documentation is extremely valuable. Dr. V acted appropriately by referring Ms. D to a neurologist and asking Mr. A to call to make sure the patient would be seen despite her uninsured status. Taking a moment to make a note in a file can mean the difference between being found liable or not liable in a future malpractice suit. n