An unguarded response can be used against you at the trial, as this naïve physician assistant learned.

At age 45, Ms. E was an experienced physician assistant who enjoyed her independence at a rural clinic. Her supervising physician’s main practice was an hour away, but he visited the clinic once a week and was always available by cell phone.

The patient, a 55-year-old woman, was a barista who filled glasses for local cowboys. She was also a heavy drinker and at risk for sexually transmitted diseases because of her tempestuous relationships, often with men she met at the bar.

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She came to the clinic complaining that she was easily fatigued and no longer had her usual levels of energy. Finding no specific abnormality, Ms. E ordered a complete blood count (CBC) and a comprehensive metabolic panel (CMP).

The CBC was within normal limits, but the CMP showed elevated liver enzymes and serum globulin, including thyroxine-binding globulin (TBG). This was to be a major issue in the subsequent malpractice case. Follow-up testing revealed the presence of hepatitis C antigen, an indication of active infection.

After a telephone consultation with her supervising physician, Ms. E referred the patient to an endocrinologist for assessment of the elevated TBG. That consultation took a number of weeks to arrange. In the interim, Ms. E put the patient on a high-protein “liver diet” to try and preserve liver tissue.

The endocrinologist ordered further thyroid testing. While the woman was waiting for her lab work to be returned, Ms. E called her to advise that she should also have follow-up tests for the abnormal liver enzymes. The patient, suspecting that Ms. E was just trying to drum up business, responded resentfully, “No way. I’ve got a specialist looking after me now.” Ms. E was busy and distracted during this conversation and did not make a formal notation in the chart, an omission she would later regret.

After several visits, the endocrinologist released the patient from his care. His letter stated that the increased TBG was of no significance because it “is usually created by estrogen or liver disease, neither of which is present in this case.” Ms. E, aware that the patient had hepatitis C, placed the letter in the patient’s chart.

The patient next saw Ms. E after a heavy bout of drinking and was given symptomatic treatment for nausea and headache. Neither her elevated liver enzymes nor her hepatitis C status was discussed. Ms. E thought it wiser to leave these emotional issues to another time. About a year later, the patient had difficulty breathing and went to a hospital emergency department. Clinicians there noticed her increased abdominal girth and ascites. They admitted her and ordered tests, which showed advanced liver disease.

The woman was told she might need a liver transplant. Meanwhile, she underwent several procedures to ease her breathing. These involved the use of a long spinal needle to remove abdominal fluid. Later her lawyer graphically detailed these procedures for the jury.

The patient sued the clinicians involved in her initial care for failing to diagnose liver failure. When Ms. E was served with notice of the lawsuit, she took a few deep breaths before opening the envelope. To her dismay, she read court papers charging that she was “incompetent and practiced below-standard medicine.” Not realizing that this was part of a plaintiff lawyer’s standard rhetoric, she wept before notifying her supervising physician. “Don’t worry,” he said. “It’s standard stuff — all part of the injustice system.”

The case progressed through paper discovery to depositions, where Ms. E faced the plaintiff’s lawyer for the first time. Things went smoothly as the lawyer went through her education and experience, but later he got more aggressive. He challenged her treatment and accused her of “ignoring red flags” and “causing the patient to lose her chance of cure.”

Ms. E, playing the game from the other side, “respectfully disagreed” and stuck to her chart entries, which indicated the patient had been a heavy drinker for years. Attributing the liver damage and elevated enzymes to hepatitis C and heavy drinking, Ms. E said she had encouraged the patient to stop drinking before spending more money on tests. This statement was later used against her.

At trial, the plaintiff’s lawyer made his case against Ms. E by pointing to her and asking the jury: “Is it right to save money by denying referral to a needy patient, in accordance with the insurance company directives?” He pounded away on the deposition statement and described the hospital procedures his client had undergone in great detail. Meanwhile, Ms. E was unable to document the telephone conversation during which she had recommended additional tests for the abnormal liver enzymes.

By the end of the trial, the jurors could remember only one “fact”: Ms. E had not referred this patient to a liver specialist because she wanted to save money. They returned with a verdict for the patient, attributing 65% of the fault to Ms. E and 35% to the thyroid specialist. The damages award was $1.8 million, of which $720,000 went to the plaintiff’s lawyer.

Legal theory

Theoretically, a provider’s conduct is measured by comparison with the “standard of care,” i.e., the actions a theoretical provider would reasonably take in the same situation. Plaintiff’s lawyers try to subvert this process by introducing emotional hot buttons that ignite juror prejudice.

One common ploy is to suggest that a provider is somehow aligned with the insurance companies. Jurors find that particularly unsympathetic. In this case, the plaintiff’s lawyer was able to use Ms. E’s statement—to the effect that the patient would be wasting her money if she investigated her liver disease unless she quit drinking—to imply that Ms. E had denied the patient medical care because of cost.

Protecting yourself

The early stages of litigation include extensive depositions of all the parties involved. During these “interviews taken under oath,” the plaintiff’s lawyer has several purposes in mind. First is to gather statements from the witnesses to support the allegations in his case. Here, the plaintiff’s lawyer elicited testimony from Ms. E, suggesting that she had held back on investigating the patient’s liver disease because the patient continued to drink heavily and such investigations would be a “waste of money.” He then used this testimony effectively during the trial. A plaintiff’s lawyer’s second goal is to assess the psychological strength of each witness.

Arguments that a treatment is not cost-effective or “too expensive” are an explosive issue with jurors, half of whom probably don’t have health insurance. The thought that they and their families might not receive needed care because of cost considerations creates the type of juror anger that plaintiff’s lawyers love to see because it results in megaverdicts.