As part of their malpractice lawsuit, the family of Mr. F introduced the affidavit of a physician who had reviewed all the records. She opined that Ms. P breached the standard of care by failing to order a basic metabolic panel, send a stool sample to the lab, and schedule a follow-up office visit. She also stated that Dr. S breached the standard by failing to provide adequate supervision of Ms. P. 


The defense attorney representing Dr. S and Ms. P filed a motion for a summary dismissal of the case, arguing that the expert’s affidavit did not address how giving Mr. F the antibacterial agent and treating his prolonged diarrhea had any bearing on his cause of death, a heart attack. 



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A hearing was held, during which the plaintiff’s attorney disputed that the heart attack was the actual cause of death, but he had no evidence to counter the death certificate. The court ruled that there was no finding of causation and thus, no case. The lawsuit was dismissed against the clinicians.


Legal background


In the field of health care, sometimes patients have unfortunate outcomes. However, an unfortunate outcome does not, in and of itself, mean that the clinician did anything wrong. An unfortunate outcome does not equate to medical malpractice. Even in cases in which the clinician did make a mistake, certain elements must be proven to determine that medical malpractice occurred. One of these elements is causation — meaning that the act or omission by the health care practitioner actually caused the injury to the patient. 


Some states, such as the one where this case took place, require review by a medical panel. As mentioned earlier, the review panel may determine whether there was a breach in the standard of care. Even if the panel decides that there was no breach, the plaintiffs can still file a lawsuit; however, the findings of the medical review panel are included as part of the evidence. 


In its decision, the court stated, “To establish a claim for medical malpractice, the plaintiff must prove, by a preponderance of the evidence, (1) the standard of care applicable to the defendant, (2) the defendant breached that standard of care, and (3) a causal connection between the breach and the resulting injury.” The court held that even if the breaches in care identified by the expert (that is, not ordering tests or stool samples) were the case, there was no explanation of how that caused or accelerated Mr. F’s untimely death. 


The plaintiffs’ lawsuit failed because no causal connection could be found between the patient’s treatment for diarrhea and his death from a cardiovascular event. 


Protecting yourself


Although Ms. P was not found liable in this case, the court did indicate that although they did not cause the patient’s death, some possible breaches in care had been identified in the expert physician’s affidavit. In his dissent, one judge listed four failures on the part of Ms. P: 1) failure to order a basic metabolic panel to evaluate hydration and electrolyte levels, which is especially critical in a patient with a renal transplant whose kidney function must be protected; 2) failure to send stool specimens to the laboratory for culture; 3) failure to schedule a follow-up appointment despite the severity and duration of Mr. F’s symptoms; and 4) prescribing metronidazole without a definite indication. 


The dissenting judge rightly noted that Ms. P should have been more cognizant of the patient’s other health issue — particularly the kidney transplant — when treating him. Remember that you are treating a whole person, not just one symptom.

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