Mr. D was worried. At age 32, he had been working as a physician assistant in a midsized medical practice for three years, but the worsening economic climate had him worried about his job.
The practice was located in a high-rent area, and the doctors owned the heavily mortgaged building. Over the past year, they—and Mr. D —had noticed a distinct drop-off in business.
If patients could treat themselves with OTC products and self-help Web sites instead of spending money on a doctor’s visit for a sniffle or cough, that’s what they were doing.
So, the physician-partners tried to come up with new revenue streams, preferably ones that involved patients paying cash directly, so the office would not have to deal with stingy third-party reimbursements. Little by little the practice incorporated new services, such as wrinkle treatments and complementary medicine consultations, into its offerings.
Now the partners had come up with a new money-making scheme: laser hair removal. The physicians decided that the practice’s NPs and PAs would be responsible for administering these treatments and leased a hair-removal machine. The manufacturer provided a brief on-site training session for Mr. D and the rest of the nonphysician clinical staff.
Mr. D was very uncomfortable with the idea of performing these treatments and generally unhappy about being asked to do them at all.
“I didn’t study all those years to do hair removal!” he complained to his wife. “Plus I don’t like that machine. The training was pretty lame —all 20 minutes of it.”
“Maybe it’s time to look for another job,” his wife suggested, and Mr. D agreed.
But jobs were becoming harder and harder to find, even in health care, and Mr. D had a wife and toddler to support. The practice where he worked had hired only one person after he joined the staff. Now a hiring freeze was in force, and the latest hire had already been laid off. Mr. D felt he could not afford to lose this job until he had a starting date for another one.
That was why when Mrs. F arrived seeking laser hair removal on her legs, Mr. D acquiesced to the managing physician’s instruction that he attend to the patient and why Mr. D did not voice his concerns about inadequate training.
Mrs. F, who had already had several wrinkle treatments, was just the sort of patient the practice was trying to attract. In her mid-50s, she had plenty of money to finance her desire to maintain a youthful appearance. She and her husband were well-known in the community, and her looks were important to both of them.
Mr. D ushered the patient into the treatment room and got to work. Mrs. F complained throughout the procedure—that he’d missed a spot, that the treatment hurt—but Mr. D tried to remain focused on his task. Mrs. F expressed great concern about the red, blotchy, swollen look of her legs after the treatment, but Mr. D assured her that within a few days, all would be normal.
Unfortunately, he was wrong. Mr. D had not used the laser properly and had burned Mrs. F’s legs, causing permanent scarring. Her husband called the practice, furious and fuming. In short order, Mr. D’s worst fears came true: He was fired.
But Mr. D’s troubles were just beginning. A month after losing his job, he was served with legal papers announcing that Mrs. F was suing him and the practice for the damage to her legs.
Mr. D’s insurance company provided a defense lawyer. He assured the PA that the case would be dismissed because Mrs. F had not filed an affidavit of merit. Many states, including the one where this incident occurred, require plaintiffs in medical malpractice cases to get an expert to certify that the allegations raise legitimate issues.
The defense attorney filed a motion to dismiss the case based on Mrs. F’s failure to file the affidavit, and Mr. D hoped for the best. Hoping didn’t help, though. The judge ruled that because the laser did not need to be operated by a medical professional, the case was not one of medical malpractice but of simple negligence. He refused to dismiss and ordered the case to proceed.
Panicked, Mr. D consulted his attorney.
“I’m sorry,” the lawyer mumbled. “I had hoped we could get it dismissed that way, but it’s definitely going to trial now. Under the circumstances, your only choice is to say that you weren’t adequately trained and try to foist the blame on the medical practice or the laser company. Or we can try to work out a settlement with Mrs. F. The truth is, a settlement will probably be less expensive in the long run.”
With the prospect of a drawn-out trial and mounting legal bills, plus the inability to start a new job while the trial was hanging over his head, settling seemed to be the best option.
Mr. D’s case was settled out of court for $25,000, which was covered by his insurance. The practice, seeking to avoid bad publicity that could negatively affect business, settled separately, also for $25,000.
Some states try to discourage frivolous cases by requiring an affidavit or certificate of merit before a medical malpractice lawsuit can proceed. The plaintiff must present an affidavit from one expert physician asserting that the standard of care was breached.
But these affidavits are required only in medical malpractice cases. They are not necessary in any other civil case where negligence is charged.
Mr. D’s attorney did not anticipate the plaintiffs’ strategy. By arguing that hair removal was not a “medical treatment,” Mrs. F’s lawyer brought the case on the grounds of general negligence. By not mentioning “malpractice,” there was no need to demonstrate her case had merit before the evidence was submitted during the normal course of the legal process.
Mr. D feared losing his job, and this fear prevented him from expressing his uneasiness with the equipment and training. Had he spoken up, he might have received additional training or Mrs. F might have been treated by someone else, and this unfortunate incident might have been avoided.
In your professional life—especially as technology, testing, and treatments change—you may be asked to perform a task that you don’t believe you’ve mastered. Mr. D had valid reasons to be worried about his job, but speaking up was the only way to have his professional concerns addressed. Always ask for help if you are not comfortable enough with a new procedure to treat a patient as your supervising physician directs.