Mrs B did not return to the emergency department or see a doctor within two days; instead she waited four days and then went to her private physician complaining of a fever and severe right leg pain. When the splint was opened, severe cellulitis was found throughout the right leg and foot. Mrs B required hospitalization for surgical debridement and intravenous antibiotic therapy. She was left with extensive scarring on her right leg, constant pain in that leg, and limited range of motion. 

On the advice of a friend, Mrs B consulted with a plaintiff’s attorney who advised her to sue Ms J for medical malpractice. 


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When Ms J was notified about the lawsuit, she was angry. She met with her defense attorney and explained her side. “I did not do anything wrong,” she told the attorney. “There was nothing to indicate cellulitis when I examined her, and I gave her specific instructions to go get the ankle looked at again within 48 hours. I have notes! I wrote it down! She waited double that amount of time. I don’t think she developed the cellulitis until after she left the emergency department. If she had seen the doctor in the amount of time that I’d told her to, this would not have happened! It’s not my fault!” 

The attorney warned her that a trial would be stressful and time-consuming, but Ms J was insistent that she had not committed malpractice and wanted to go to trial. 

The case dragged on for many months but eventually went to a jury trial. Ms J testified about her instructions to Mrs B, and the medical records showing her instructions were introduced into evidence. When Mrs B testified, she had to admit that she had not returned within the 2 days as instructed. “I was caring for my ill mother,” she testified. The jury was sympathetic to Mrs B, but sided with Ms J and returned a verdict for the defense.

Legal background

The majority of cases are settled out of court and never make it to a jury. There are many good reasons for this. Trials are costly and extremely time consuming. Litigated claims take an average of over 2 years to resolve. Juries are unpredictable and can sometimes side with a plaintiff due to sympathy. 

However, when cases do go to trial, studies have shown that they end in the favor of the healthcare practitioner a great deal of the time. According to a 2009 analysis of claims recorded in the National Practitioner Data Bank, between 1991 and 2007, 37% of physicians, 3.1% of physician assistants, and 1.5% of nurse practitioners had to make a malpractice payment1. In the ten-year period between 2003 and 2013, fewer than 3,000 malpractice judgments were returned against nurse practitioners. 

Protecting yourself

Ms J did several things right in this case, and those things are what helped her to succeed at trial. First, she gave her patient clear and specific instructions: “return to the emergency department or your own doctor within the next 48 hours to have the ankle checked.” Second, and most important, she noted that in the file. This provided evidence that she could use in court. 

Patients do not always follow directions. All a clinician can do is clearly instruct the patient about what follow-up entails, and why it is necessary. You cannot force a patient to follow instructions. But if a patient fails to heed instructions, and you can prove that you have relayed those instructions, you can protect yourself from liability. 

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

Reference

  1. Journal of Medical Licensure & Discipline. 2009;95:6-16