A narcotics arrest opens the door for a malpractice suit claiming unnecessary removal of a skin lesion.

Ms. D has worked as a nurse practitioner in the same family practice for the past eight years. One of her patients, a 56-year-old construction worker who spent much of his time outside, came to Ms. D’s clinic complaining of a hard scaly area on his left forearm. Ms. D was not sure of the diagnosis (she thought it was either an advanced hyperkeratosis or a small squamous cell carcinoma) and asked him to come back when her supervising physician was present.

As luck would have it, Ms. D was not available when the patient returned. Her supervising physician examined him, then performed excision biopsy on the lesion and sent the sample to pathology. The results indicated hyperkeratosis, and the physician explained to the patient that the lesion was not cancer. “Then why did you have to remove it?” the patient asked. The physician stuttered and stammered before responding, “We had to take it off just in case.”

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The patient did not accept this explanation (his neighbor had previously had a similar lesion treated with liquid nitrogen), but nothing came of this disagreement until the local newspaper carried a photo of the physician under the headline “Local Physician Accused of Cocaine Use.” Ms. D had found out about this situation only the day before. A colleague told her that her supervising physician had been arrested and released when narcotics were found in his car.The patient met with a plaintiff’s lawyer.

By the end of the meeting, the two had agreed on a litigation strategy. They decided to use the drug arrest as leverage in a malpractice lawsuit claiming lack of informed consent and unnecessary removal of a noncancerous lesion. After having the patient’s chart reviewed by an expert dermatologist and receiving a report favorable to his case, the plaintiff’s lawyer filed suit against Ms. D, her supervising physician, and the clinic.

The physician’s prosecution for drug possession moved through the criminal court, ending with a plea bargain and an agreement to undergo rehabilitation. His malpractice suit, however, was not resolved so easily. Although the physician was professionally and financially ruined, he was covered by insurance for the period of the alleged malpractice. In his deposition, he answered the medical questions by referring to the chart. As instructed by his defense lawyer, he reconstructed the patient’s visits and explained the reasoning behind his clinical management. But when the plaintiff’s lawyer got to the physician’s alleged drug use, he meekly offered, “On the advice of counsel, I decline to answer on the grounds that it may incriminate me.” The plaintiff’s lawyer’s frustration was evident, but at trial, he was able to get around the physician’s obduracy by introducing statements from investigating detectives and the physician’s guilty plea.

The case came to trial two years after the patient’s final visit. By this time, Ms. D and the clinic had been dismissed as defendants. The physician was halfway through his rehabilitation program. During his testimony, he looked healthy and came across as a knowledgeable and compassionate clinician. Then, the plaintiff’s lawyer attacked, forcing the physician to “plead the Fifth” on a number of questions relating to cocaine use. The defense lawyer objected repeatedly to this line of questioning, saying it was irrelevant to the issue of malpractice, but the plaintiff’s lawyer convinced the judge that the physician’s drug use was something a patient would want to know about when giving informed consent. In support of this argument, he pointed to answers the physician had given in his deposition, such as “the use of cocaine could affect a physician’s judgment,” and, “patients should know any factor that will impact on their care.” Ms. D was called as a witness to fill in the background details of the patient’s initial visits with her.

The jury returned with a decision against the physician for fraud, misrepresentation, and concealment of material facts relating to his cocaine use. The patient was awarded $3 million for his pain and suffering. On a motion by the defense lawyer, the trial judge (after considering the significant role that cocaine use played in the case) ruled that the verdict could not stand because the physician’s drug use did not relate directly to the claim of malpractice. The plaintiff’s lawyer registered an objection and announced his intent to appeal. Six months later, the appeals court reversed the trial court judge’s opinion, holding that the physician, by concealing his drug use, “materially misrepresented himself as qualified,” which resulted in damages to the patient. The verdict was allowed to stand.

Legal background

Lawyers work hard to get prejudicial material before the jury (e.g., drug use, previous convictions, divorce, alcoholism), but most of it is excluded by the judge as not relevant. This is in accordance with the judge’s responsibility to control the judicial process, part of which is to rule on the evidence and control what is presented to the jury. The evidence in this case as to the physician’s cocaine use was first admitted by the judge, who then thought better of it and overturned the jury verdict. The appeals court, however, saw a material connection between the quality of care, informed consent, and the physician’s drug use, thus making it relevant to the malpractice issue. By implication, if the physician had told the patient that he was using cocaine, the patient would have had no grounds for claiming lack of informed consent. Thus, the trial court judge has an important (but hidden) role in the outcome of the case through his control of the process. Since most judges are elected, plaintiff’s lawyers and insurance companies are frequent contributors to their election campaigns.

Risk-management principles

Consumer groups are placing clinicians under increasing scrutiny by an array of regulators. It is more and more likely that clinicians’ personal lives will be dragged into the public arena, either through regulatory action (e.g., from a licensing board) or through malpractice litigation. This case illustrates a trend toward more awareness of providers’ personal lives if those factors can affect patient care. A defendant-clinician can expect to be quizzed on such personal issues as hours of work, amount of alcohol consumed, and drugs being taken (both prescription and illicit). The most effective risk-management strategy under these circumstances is one that heeds the ancient advice of Hippocrates in the Oath: “In purity and holiness I will live my life and practice my Art.” However, it would be naïve to forget that providers are human and live in a culture in which substance and alcohol abuse have become commonplace.

Clinicians with substance abuse issues should stop treating patients and get professional help immediately. It is unlikely that a substance abuser will do so voluntarily and may only act when confronted and threatened with exposure, incarceration, or other unpleasant alternatives. To be successful, a confrontation by colleagues must be thoroughly documented.