Mr J is a certified physician assistant (PA-C) who worked in the emergency department (ED) of a large hospital for almost a decade and had 15 years of practice prior to joining the hospital. He is board certified in emergency medicine.

One day in May a 49-year-old woman came into the ED complaining of multiple symptoms. Mr Z examined the patient, whose chief complaints were dizziness, palpitations, and shortness of breath. She also reported a headache and some nausea. Mr J noted her complaints and she was given IV fluids. After several hours of observation and monitoring, Mr Z discharged the patient to her home with a diagnosis of benign paroxysmal positional vertigo and prescriptions for nausea and dizziness. 

The next day, Mrs T’s adult daughter came to the patient’s home at 1 pm to check on her and found Mrs T deceased. An autopsy concluded that the cause of death was bilateral pulmonary thromboembolism; the autopsy also noted an enlarged heart.


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Mrs T’s children consulted with a plaintiff’s attorney to discuss a possible lawsuit. The attorney had the medical records and autopsy report reviewed by his medical experts who noted that the PA did not specifically rule out pulmonary embolism as a possible diagnosis. The attorney filed a lawsuit against Mr J and the hospital. The lawsuit charged that Mr J (and his employer, the hospital) were guilty of wrongful death and personal injury based on the PA’s negligence.

Mr J and the hospital met with their defense attorneys, who had medical experts look at the evidence, and they concluded that Mr J had acted properly.

The case went to a jury trial 3 years after the patient’s death. The plaintiff’s attorney argued that “the primary job of a doctor or a physician assistant is to make sure they rule out potential or life-threatening conditions.” The plaintiffs introduced testimony from 2 physicians, one of who testified that Mr J had not met the standard of care in the case because he had not addressed one of Mrs T’s chief complaints. “The patient came into the emergency room complaining of shortness of breath and left the emergency department with a diagnosis that had nothing to do with shortness of breath and was physiologically not plausible.”

A forensic pathologist testified for the plaintiff as well. In his testimony, he discussed the autopsy performed by the county coroner, and agreed with the coroner’s finding that the immediate cause of the death was bilateral pulmonary embolism due to deep vein thrombosis.

Mr J testified on his own behalf, detailing his treatment of the patient and the reasons for his conclusions. He was followed by an emergency medicine physician who testified that Mr J had not acted negligently and had appropriately treated the patient based on what was known at the time.

The defense also introduced testimony from a forensic pathologist who disagreed with the coroner’s conclusion that bilateral pulmonary thromboembolism had caused Mrs T’s death.

“The microscopic slides and the few blood clots that are there have features of perimortem blood clots, so blood clots that have formed in the process of her dying,” testified the pathologist. He concluded that she was already dying when the clots were formed and that the cause of death was from cardiomegaly from hypertensive heart disease.

At closing, the plaintiff’s attorney argued that Mr J had not cleared the patient of every potential life-threatening problem before discharging her. The defense’s attorney argued that the PA had acted appropriately and that Mrs T’s death, while unfortunate, was not linked to anything that Mr J did or did not do.

After deliberating, the jury returned with a verdict finding that neither Mr J nor his employer was negligent.

Protecting Yourself

The 4 elements of medical malpractice are:

  • A professional duty owed to a patient
  • Breach of that duty
  • Injury caused by the breach
  • Resulting damages

In this case, the jury could not find that the plaintiffs had established either a breach of duty or that injury was caused by the breach. There must be a connection between what the clinician did or did not do and the injury/damages or the case will fail.

A clinician in the ED needs to be able to act fast and rule out potentially life-threatening conditions, but it is impossible to rule out everything. The patient came in with a variety of complaints, which Mr J properly noted in the patient’s file. After examining Mrs T and then monitoring her for several hours in the emergency department, Mr J made a reasonable diagnosis based on her complaints and, without cause to keep her in the hospital, he discharged her.

Patients will suffer negative outcomes but not every negative outcome can or should be blamed on negligence or malpractice.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.