Mr. G is a 38-year-old physician assistant in a busy family clinic. In addition to treating challenging conditions, he regularly handled a high volume of everyday cases involving upper respiratory tract infections, nasal allergies, strep throat, arthritis, minor injuries, diabetes, and hypertension. An average day brought him upwards of 50 patients. He took a great deal of pride in his productivity and regularly earned praise from his superiors for his efficient work habits. As Mr. G would soon learn, however, even the most ordinary cases can turn ugly in a hurry.
One such case was that of a 42-year-old woman who was treated by a family practitioner in Mr. G’s clinic. She complained of headache, back pain, and swelling in her feet and hands. Her medical history included high BP and a diagnosis of pyelonephritis made seven months earlier.
The family practitioner had ordered blood tests during the patient’s first visit, but the nurse was unable to find a suitable vein in either arm. The physician had then noted in the chart that the patient should be referred out for her lab work or have a femoral stick done in the office at another time.
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A urine sample was taken and sent to the lab for analysis. The results showed 2+ protein, and they were diligently posted in the chart. The family practitioner examined the patient two more times to renew her BP medication but did not perform a femoral stick for the blood tests or comment in the medical chart on the previous urinalysis.
The patient began to see Mr. G nine months later, after her physician’s appointment schedule had filled up. The young PA regarded hers as a routine visit in a day filled with similar cases. Mr. G’s practice of taking a full history and performing a physical exam at each patient’s first visit had fallen victim to the pressure for “throughput” in the clinic. Mr. G treated the patient for the next two-and-a-half years with a variety of medications to control severe hypertension of unknown etiology. The patient later testified that Mr. G had made only one unsuccessful attempt to draw blood and never asked to repeat the urinalysis. Later, a plaintiff lawyer would accuse Mr. G of neglecting to make the necessary referral to a nephrologist.
Three years after her first visit to the clinic, the patient’s condition was deteriorating. She could hardly keep down any food and complained of nausea and abdominal pain. She had begun vomiting on a daily basis and was losing weight. Her illness forced her to quit her job as a domestic health-care aide. The medication prescribed by Mr. G had not lowered her BP or alleviated her headaches at all. She left Mr. G’s office for what turned out to be the last time and went straight to the nearest emergency room, where initial blood work (obtained via femoral vein puncture) found her blood urea nitrogen/creatinine to be 150/10 mg/dL. She was admitted and diagnosed with renal failure requiring dialysis. After discharge, she remained on dialysis permanently. One year later, an attempted kidney transplant failed due to rejection.
The patient consulted a plaintiff lawyer to review the case against her providers. The medical expert’s report criticized Mr. G for not referring the patient earlier, for not repeating the first urinalysis, and for failing to perform or arrange a femoral stick to obtain blood work. A malpractice case was eventually filed against Mr. G and his supervising physician.
Mr. G spent his summer vacation in the courtroom, anxiously looking from the jury to the judge and wondering what they would decide. The plaintiff lawyer presented his arguments directly and through expert witness testimony: Mr. G worked in a high-volume practice that allowed insufficient time to thoroughly check the patients. He had ignored this particular patient’s history of pyelonephritis, and he had neglected to check on the results of the urinalysis or ensure that important blood work was done. The defense team responded to these accusations by arguing that Mr. G had referred the patient for blood work, but she had not gone to the lab as instructed. Unfortunately, there was no chart notation to that effect. The lab work wasn’t the critical point, the defense noted, because the patient’s renal failure was so severe that even if Mr. G had detected it on the first visit, there was nothing he could have done to help her.
After a week of testimony, the jurors delivered their verdict. Mr. G owed the patient $1.75 million. The plaintiff lawyer and Mr. G’s insurance company agreed to settle for the limits of the insurance policy ($1.25 million).
Legal theory
Juries are expected to arrive at consistent verdicts and awards for damages in each case, but studies have shown gross inconsistencies in situations with similar circumstances. Although plaintiff lawyers like to attribute these vagaries to differences in legal skill, the great variability in jury perception and bias accounts for most of the discrepancies. In this case, the patient’s renal failure was attributed to Mr. G, implying that it would have been treatable had it been detected on her first visit. In all medical probability, her condition was advanced and largely nonreversible at that time. Still, the plaintiff lawyer was able to shape the jury’s perception otherwise.
The extensive discovery process is intended to disclose all the facts of a case and encourage early and fair settlement, but it has largely failed in this aim. Instead, discovery has become a powerful weapon used by plaintiff lawyers to harass and inconvenience their opponents into submission. Answering tedious written questions and assembling the seemingly endless number of documents demanded by plaintiff lawyers can consume as much as four to six hours a week. A common complaint heard from malpractice defendants concerns the excessive amount of time the preparatory phase of litigation demands from an already crowded schedule of appointments.
In the growing number of cases in which the amount awarded exceeds the provider’s policy limits, plaintiff lawyers usually settle for the maximum amount of coverage. In a few cases, an aggressive plaintiff lawyer exercises his legal right to attack the personal assets of the defendant. Filing for bankruptcy has proven to be the only viable option for the target of this vindictive behavior.
Protecting yourself
Mr. G testified that he had instructed the patient to have her blood drawn at the pathology lab by femoral stick but claimed that the patient was noncompliant. His credibility was substantially weakened by the lack of chart notation or referral slip corroborating this testimony. In fact, the plaintiff lawyer was able to make this absence the pivotal point in the case, effectively sidestepping the more inconvenient medical issues. Juries tend to respect the authenticity and credibility of the medical charting system. Even cryptic and abbreviated chart entries can be interpreted during testimony.
