A case of severe stomach cramping is initially blamed on food poisoning.The result is a tragedy.

Mr. G is an experienced physician assistant who has worked in a variety of positions, ranging from family practice to emergency care. His present job is to triage patients arriving in the emergency department (ED) and to treat the family practice cases when the emergency physicians are busy.

Late one Saturday night, a 42-year-old woman arrived at the ED complaining of severe abdominal cramps. Mr. G met her at the door and helped her to an exam table to take her initial history. Mr. G knew the patient, who worked as an intake interviewer in the hospital’s pediatric department. She told him the pain had developed after eating fish which “may have been off” and she suspected that she had a severe case of food poisoning. Mr. G documented her initial presentation and vital signs on the chart and gave the physician on duty his differential, which included acute gastroenteritis, food poisoning, and bowel obstruction.

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After assessing the patient, the physician agreed with Mr. G’s evaluation and ordered a “bowel obstruction series,” including upright and transverse x-rays of the abdomen to detect fluid levels. Because it was late on Saturday night, there was no radiologist available. Hospital policy required the ED physician to read the film and have it reviewed by the radiologist on Monday morning. Looking at the films together, Mr. G and the ED physician could find no distended loops of bowel or fluid levels that might indicate obstruction. The patient was told that she probably had food poisoning and was sent home for bed rest and fluids with the reassurance that she would feel much better in the next 24 hours. If she did not, she should return to the ED.

The radiologist reviewed the films on Monday morning and noted the presence of a large pelvic mass on the patient’s abdominal x-ray. He described his findings on a discrepancy sheet, which was then passed to the physician on duty in the ED. The physician reviewed the situation and decided that a pelvic mass was not important enough to notify the patient, giving it a “C” rating in urgency.

The patient, who was lying at home in pain, was never notified of the finding, and her condition steadily worsened. She eventually reached the end of her pain tolerance and called for an ambulance. She died on her way back to the hospital. Autopsy revealed a strangulated loop of small bowel in the pelvic area. A pedunculated fibroid wrapped around the base of the loop was identified as the cause of the strangulation.

Following her funeral, the patient’s family consulted a plaintiff’s lawyer, who arranged for the chart to be reviewed by an expert emergency physician. The expert’s report criticized Mr. G and the first ED physician for not recognizing the fibroid on x-ray and criticized the second ED physician (Monday morning) for not comprehending the situation and notifying the patient to return immediately for medical review. The expert attributed the woman’s death to these shortcomings, prompting the plaintiff’s lawyer to file a malpractice suit against Mr. G and the two ED physicians.

The depositions began after about a year of discovery. Mr. G was deposed first and worked through his experience and training before being asked to describe exactly what happened the night the woman arrived at the ED. Working directly off his triage notes, Mr. G was able to reconstruct the sequence of events. When the plaintiff’s lawyer asked what his diagnosis was, Mr. G paused and dodged the trick question. “My job is not to make diagnoses,” he replied, “but to triage patients on their clinical condition.” The plaintiff’s lawyer accused him of being difficult and moved on to the next line of inquiry. With Mr. G’s skillful use of his clinical notes, the deposition was deemed a draw by the defense lawyer. Next, the two ED physicians gave their depositions, followed by the experts for each side. Attempts at settlement failed, and the case progressed to trial.

Two days before the trial was set to begin, the plaintiff’s lawyer made a strategic decision to drop Mr. G and the first ED physician from the case. This left the second ED physician alone to defend his decision to ignore the pelvic mass. His main defense was that the patient had ignored her discharge orders to return to the clinic if her condition did not improve after 24 hours. At the conclusion of the trial, the jury awarded the patient’s estate $2 million but found the ED physician only 75% at fault (the patient was responsible for the remaining 25%). The judge awarded the patient’s estate $1.5 million in accordance with the jury’s findings. Mr. G watched the proceedings from a safe distance, grateful that strategic considerations had left him out of the verdict.

Legal background

Theoretically, plaintiff’s lawyers identify the wrongdoers at the time of filing, but the reality is more complicated. “Catch and release” or “name the chart” are common strategies that confer significant benefits on the plaintiff’s lawyer who utilizes them. Mr. G was named in the initial lawsuit and went through extensive discovery only to be released days before trial when it became apparent that the plaintiff could make more money without him. Such tactical considerations are at the root of the failure of malpractice litigation as a quality-control mechanism.

Comparative fault statutes now apply in 45 states. These allow juries to apportion a percentage of blame to each defendant, plaintiff, or other absent party. The judge then reduces any award proportionately. This is a more equitable system than that found in the remaining five states without these statutes. In these states, a patient found to be even 1% at fault would be prevented from collecting any damages, even though the clinician might be 99% at fault (this is known as the “contributory negligence” rule).

Risk-management principles

Although Mr. G was only peripherally involved in this case, he found himself deeply mired in the resulting lawsuit. He was eventually released from the litigation, but he endured almost two years of stress, which damaged his health and family life. Clinicians placed in the position of defendant in a malpractice suit should marshal every clinical, emotional, and financial resource they have in preparation for an all-out battle. It is a mistake to conclude that minimal clinical involvement ensures minimal risk.

Depending on the tactics the plaintiff’s lawyer decides to employ, the “peripheral” defendant might suddenly find himself involved. Mr. G took the situation very seriously and prepared himself thoroughly for the depositions and trial experience. These preparations translated into a better litigation experience and may well have been responsible for his eventual release from the suit.

Risk management does not stop once the lawsuit begins. Mr. G was careful when questioned on deposition to limit his answers to his area of competence, namely the function of triaging the case before the patient was seen by the ED physician. By refusing to enter into a discussion on the appropriateness of subsequent clinical management of the patient, Mr. G denied the plaintiff’s lawyer the testimony he was seeking and avoided being maneuvered into testifying against his colleague.