1 Medical Liability Alert MALPRACTICE REVIEW Malpractice Verdict Review with Analysis 2014 CME Series This CME certified enduring activity is jointly provided by Center for Continuing and Outreach Education (CCOE) at Rutgers Biomedical and Health Sciences and Zarin s Professional Liability Publications. Release Date: July 1, 2014 Expiration Date: July 1, 2015 Medical Liability Alert: Malpractice Verdict Review with Analysis presents actual malpractice case studies of previous physician experiences reflected in trial results. Reviews also include a practical medical liability analysis and risk management advisory written by an experienced malpractice attorney for the purpose of avoiding similar liability and improving patient care. Risk management and the awareness of prior experiences can have a positive impact on your ability to provide excellent patient care. It also helps to mitigate liability associated with adverse outcomes. Target Audience This activity is intended for any practicing physician with an interest in medical liability and risk management. Learning Objectives Upon completion of this activity, participants should be better able to: Define the legal criteria that determine medical liability through review and analysis of actual medical liability case histories. Recognize the underlying causes and associated contributing factors of commonly cited malpractice cases. Implement risk management strategies to avoid and reduce the exposure of a medical malpractice claim or adverse outcome. Earn CME Credit This CME self-study activity contains the Malpractice Review cases published in the Medical Liability Alert newsletters from January through July Participants can earn up to 6.0 AMA PRA Category 1 Credits TM. Participants should choose the section that best meets their educational need and read all the cases within the section. After reviewing the material, complete the section s associated post-test consisting of a series of multiple-choice questions. Upon completing this activity as designed and achieving a passing score 70% or higher on the post-test, participants will receive a letter of credit awarding AMA PRA Category 1 Credits TM and the test answer key four (4) weeks after receipt of the registration and evaluation forms. The estimated time to complete this activity is 6.0 hours. Send the completed registration and evaluation forms to: Zarin's Professional Liability Publications Medical Liability Alert 2014 CME Series via mail: 45 Springfield Avenue, Springfield, New Jersey via fax: Claiming CME credit for this activity is available through July 1, 2015.
2 Faculty Ira J. Zarin, Esq, Founder, Medical Liability Alert, Zarin s Professional Publications, Springfield, NJ Planning Committee Jed M. Zarin, Editor in Chief, Medical Liability Alert, Zarin s Professional Publications, Springfield, NJ Gary Zarin, Business Development, Medical Liability Alert, Zarin s Professional Publications, Springfield, NJ Contributing Editors Brian Kessler, Esq, Editor, Jury Verdict Review Publication, Springfield, NJ Laine Harmon, Esq, Editor, Jury Verdict Review Publication, Springfield, NJ CME Reviewer Dennis P. Quinlan, MD, Associate Professor of Medicine, Rutgers New Jersey Medical School, Newark, NJ Accreditation This activity has been planned and implemented in accordance with the Essential Areas and Policies of the Accreditation Council for Continuing Medical Education (ACCME) through the joint providership of Rutgers, The State University of New Jersey and Zarin's Professional Liability Publications. Rutgers, The State University of New Jersey is accredited by the ACCME to provide continuing medical education for physicians. Rutgers, The State University of New Jersey designates this enduring material for a maximum of 6.0 AMA PRA Category 1 Credits TM. Physicians should claim only the credit commensurate with the extent of their participation in the activity. In order to help ensure content objectivity, independence, and fair balance, and to ensure that the content is aligned with the interest of the public, CCOE has resolved all potential and real conflicts of interest through content review by a non-conflicted, qualified reviewer. This activity was peerreviewed for relevance, accuracy of content and balance of presentation by Dennis P. Quinlan, MD. This activity was pilot-tested for time required for participation by Sejal Amin, MD, Chris Bryczkowski, MD, Lalithapriya Jayakumar, MD, Snehal Patel, MD and Laryssa A. Patti, MD. Disclosure Disclaimer In accordance with the disclosure policies of Rutgers and to conform with ACCME and FDA guidelines, individuals in a position to control the content of this educational activity are required to disclose to the activity participants: 1) the existence of any relevant financial relationship with any entity producing, marketing, re-selling, or distributing health care goods or services consumed by, or used on, patients, with the exemption of non-profit or government organizations and non-health care related companies, within the past 12 months; and 2) the identification of a commercial product/device that is unlabeled for use or an investigational use of a product/device not yet approved. Disclosure Declarations Ira J. Zarin, Esq has no relevant financial relationships to disclose. Dennis P. Quinlan, MD has no relevant financial relationships to disclose. Field Testers, Sejal Amin, MD, Chris Bryczkowski, MD, Lalithapriya Jayakumar, MD, Snehal Patel, MD and Laryssa A. Patti, MD, have no relevant financial relationships to disclose. Planners, Brian Kessler, Esq, Laine Harmon, Esq, Gary Zarin, and Jed Zarin, have no relevant financial relationships to disclose. Center for Continuing and Outreach Education staff member, Patrick Dwyer, Director, Continuing Medical Education, has no relevant financial relationships to disclose. Off-Label Usage Disclosure This activity does not contain information of commercial products/devices that are unlabeled for use or investigational uses of products not yet approved. For Additional Information or Questions Zarin's Professional Liability Publications 45 Springfield Avenue, 2nd Floor, Springfield, New Jersey Subscriptions: (973) Main Office: (973) Fax: (973) Please direct CME related questions to CCOE at or Disclaimer The views expressed in this activity are those of Zarin s Professional Liability Publications. It should not be inferred or assumed that Zarin s Professional Liability Publications are expressing the views of Rutgers. Copyright 2014 Zarin s Professional Liability Publications and Rutgers, The State University of New Jersey. All rights reserved including translation into other languages. No part of this activity may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval systems, without permission in writing from Zarin s Professional Liability Publications and Rutgers. 2
3 MEDICAL LIABILITY ALERT TEST QUESTIONS TEST 1 SECTION 1 $2,433,000 VERDICT MISDIAGNOSIS OF BORDERLINE OVARIAN TUMOR UNNECESSARY CHEMOTHERAPY SEVERE CHEMO BRAIN DETERIORA- TION OF COGNITIVE ABILITIES. 1. Regarding the use of the exercise of reasonable medical judgment defense in order to avoid liability for an erroneous diagnosis resulting in injury to a patient, which of the following statements are true? a. Since a practitioner has the right to exercise their own medical judgment in arriving at a conclusion, the fact that the exercise of that judgment turns out to be erroneous at a later time will not normally incur liability. b. Practitioners have the right to exercise their own medical judgment in arriving at a diagnosis. The exercise of that judgment can never incur liability even where the practitioner s judgment may later turn out to have been inaccurate or inappropriate. c. Where a practitioner exercises medical judgment to do that which most physicians under the same conditions would not do, then they may not expect to avoid liability based on the defense that they were exercising their own reasonable medical judgment, primarily because such judgment cannot be said to have been reasonable under the circumstances. d. Since practitioners have the right to exercise their own medical judgment in arriving at a diagnosis, they cannot incur liability even when the exercise of that medical judgment cannot be considered reasonable. 2. Regarding a practitioner s right to exercise his or her own medical judgment in arriving at a diagnosis, which of the following statements are correct? a. Where a practitioner s judgment leads him or her to do that which most physicians under those circumstances would not do, they may not avoid liability by claiming that at the time, they were exercising their own judgment, because that judgment under the circumstances cannot be said to have been reasonable. a. A practitioner will always expect to avoid liability even where he or she is involved in a misdiagnosis if they can show that at the time, they were exercising their own medical judgment in doing so. c. Practitioners have the right to exercise their own medical judgment in the course of treatment of a patient, but can never avoid liability based upon their contention that they were exercising their own medical judgment which they conceived at the time to be reasonable. d. The exercise of medical judgment that can avoid liability for a practitioner having made a misdiagnosis can always be justified if the practitioner can establish that at the time, he or she was exercising their own individual medical judgment in doing so. $2,350,000 VERDICT FAILURE TO DIAG- NOSE KIDNEY BLOCKAGE RESULTING IN WIDESPREAD INFECTION AMPUTATION OF FOOT AND PART OF LEG MOST FIN- GERTIPS FALL OFF. 3. Where subsequent treating physicians in an emergency department fail to review patient records from an emergency room visit two days earlier, and then misdiagnose the patient s condition causing severe injury, which of the following statements are true? a. Subsequent treating emergency medicine physicians cannot be charged with the responsibility for being aware of the findings and determinations of prior treating emergency room physicians who rendered their own diagnosis two days earlier if they did not read the available record within the same emergency room containing those earlier findings and determinations. b. Subsequent treating emergency medicine physicians who fail to examine the patient s available emergency department records from a visit two days earlier, thereby causing a 12- hour delay in diagnosis and treatment of a severe infectious condition to the detriment of the patient, can normally expect to incur liability. c. Practitioners in an emergency department setting cannot be charged with the responsibility for having read all the relevant medical records existing within the same institution if they can prove that no such records were actually called to their attention. d. If practitioners who fail to read an appropriate medical record existing within the institution in which they are treating the patient and are not proven to have been directly responsible for the creation of that record, then they cannot be held liable. 4. Regarding the liability of a practitioner who renders a correct diagnosis, but does so after an unnecessary 12-hour delay resulting in significant additional injury to the patient, which of the following statements are correct? a. Practitioners so involved can incur no liability if they ultimately arrived at the correct diagnosis from which the patient was actually suffering. b. There can be no liability to a practitioner so involved if ultimately, even after a 12-hour delay, he or she arrives at the correct diagnosis and affords the patient appropriate treatment at that time. c. There can be no liability to the practitioner involved, particularly if the patient ultimately received the necessary treatment which their condition required. d. The fact that the patient ultimately received necessary treatment, but which treatment was rendered too late to avoid injury, will not excuse the defendant s deviation in failing to make a timely diagnosis so as to avoid injury to the patient due to a delay in a correct diagnosis. $1,500,000 VERDICT FAILURE TO PER- FORM LAPAROSCOPIC SURGERY UPON INDICATIONS OF ECTOPIC PREGNANCY TREATED MEDICALLY FOR ALMOST TWO WEEKS RUPTURED FALLOPIAN TUBE, EXTENSIVE INFAMMATION SCARRING OF REMAINING FALLOPIAN TUBE SIGNIFI- CANTLY REDUCED FERTILITY. 5. Where a practitioner undertakes to do that which most physicians under the same circumstances would not do, resulting in injury to the patient, regarding the liability of that practitioner, which of the following statements are not true? a. Practitioners in this situation can avoid liability by contending that at that time, they were exercising their own medical judgment in doing so. b. In order to avoid liability for having made a mistake by exercising their own medical judgment, that judgment exercised must be considered reasonable judgment. c. Exercising medical judgment that leads a physician to deviate from what most physicians would do under similar circumstances cannot be considered to be the exercise of reasonable judgment. d. Physicians who undertake to exercise unreasonable judgment in the course of treatment of a patient cannot avoid liability based upon the fact that at the time, they were exercising their own personal medical judgment. 6. Where evidence clearly indicates that a patient was suffering from an ectopic pregnancy of a size greater than 4 cm and the practitioner involved then waits for almost two weeks before performing laparoscopic surgery, causing the patient to suffer a ruptured fallopian tube, regarding liability, which of the following statements are incorrect? a. A treating ob/gyn cannot incur liability for any delay in affording laparoscopic surgical intervention, which was initially addressed medically with methotrexate, because it was his personal opinion that the ectopic pregnancy could be missed with laparoscopic surgery. b. Since the evidence indicated that the patient was suffering from an ectopic pregnancy of a size greater than 4 cm, the appropriate standard of care clearly mandates the performance of a laparoscopic surgical intervention which should be performed as soon as possible. c. The defendant practitioner clearly deviated in not performing a necessary procedure for almost two weeks to the point where the patient suffered irrevocable injury due to the rupture of the fallopian tube as a result of the delay. Continued on next page 3
4 MEDICAL LIABILITY ALERT TEST QUESTIONS TEST 1 SECTION 1 d. Undue delay in appropriately addressing a patient s condition can incur liability for all of the injuries sustained including, in this case, a ruptured fallopian tube, extensive inflammation within the abdomen involving the bowel and appendix, as well as injury to both fallopian tubes and ovaries. $1,370,000 VERDICT SURGERY NEGLI- GENCE FAILURE TO TIMELY DIAGNOSE AND TREAT BOWEL OBSTRUCTION NEGLIGENT DIAGNOSIS OF BOWEL OBSTRUCTION AS CANCER WRONGFUL DEATH OF 73-YEAR-OLD PATIENT. 7. Where a practitioner erroneously decides upon what he perceives to be the most serious potential threatening diagnosis without confirmation through appropriate testing, and thereby delays appropriate consideration of the actual on-going and treatable condition to the patient s peril, regarding liability, which of the following statements are false? a. Practitioners who simply decide upon what he or she perceives to be the more serious of the potentially threatening diagnoses without confirmation through appropriate testing can incur liability for having done so, particularly if such action inappropriately delays proper treatment of a treatable condition. b. Practitioners will be determined to have deviated from acceptable standards of practice for incorrectly diagnosing a patient with advanced stage colon cancer when the patient was actually suffering from a benign mass that was causing intestinal blockage, a treatable condition. c. Practitioners cannot incur liability if, in their medical judgment, the more threatening diagnosis decided upon can be considered more serious than the actual treatable condition which was ignored. d. Evidence clearly indicating that not only did the practitioner incorrectly diagnose the decedent with advanced stage colon cancer without appropriate testing and evaluation, but also seriously deviated by taking no action whatsoever to confirm or repute that erroneous diagnosis, will bring a finding of liability. 8. Regarding the responsibility of a treating practitioner in arriving at a correct diagnosis during the course of treatment of a patient, which of the following statements are incorrect? a. Treating practitioners are generally considered to be guarantors of initially arriving at a correct diagnosis in the course of treatment of their patients in every situation. b. Practitioners are not legally considered to be guarantors of arriving at a correct diagnosis in every particular treating situation. c. Treating practitioners are legally considered to be guarantors of abiding by all appropriate standards of care in arriving at a diagnosis. d. Where a diagnosis is erroneously arrived at for failure to appropriately confirm or refute the diagnosis with all available and appropriate testing, thereby perpetuating the misdiagnosis and causing injury to the patient, the practitioners so involved can clearly incur liability for having done so. $868,408 VERDICT FAILURE TO PROP- ERLY PERFORM SKIN RESURFACING PRO- CEDURE PLAINTIFF SUFFERS SEVERE BURNS TO HER FACE HYPERBARIC CHAMBER THERAPY PERMANENT FACIAL SCARRING. 9. Regarding a medical practitioner s legal responsibility in undertaking a medical procedure beyond their training and experience to handle adequately and safely, resulting in injury to the patient, which of the following statements are true? a. Since practitioners are not legally considered to be guarantors of a good result in every case they undertake, they normally would not be expected to incur liability in any medical situation involving a poor result to the patient. b. Although practitioners are not legally considered to be guarantors of a good result in every case they undertake, they do warrant that they have adequate training and experience to safely perform that procedure in accordance with the relevant standard of care. c. There can be no liability to the practitioner so involved if he undertook the procedure as a licensed plastic surgeon. d. The practitioner involved would not normally be expected to incur liability if a poor result occurred despite the fact that he had some awareness of the procedure as part of his plastic surgery training. 10. Where a practitioner undertakes to perform a medical procedure that is medically contradicted by the patient s medical history, regarding the liability of the practitioner involved, which of the following statements are not true? a. There can be no liability to the practitioner who performed a procedure where the practitioner can establish that he or she was not directly informed by the patient of the patient s prior keloid scarring, which contraindicated the performance of the procedure involved. b. The practitioner involved can incur liability for failing to appropriately read the patient s given history wherein the patient advised that she had previously sustained keloid scarring which is a known and clear contraindication for the performance of the procedure involved. c. When a practitioner undertakes a procedure that is contraindicated due to the patient s known prior medical history of keloid scarring, the practitioner may not avoid liability based on the argument that he or she was unaware of that prior history. d. Where there exists prior, readily available medical history indicating a patient s contraindication to a proposed procedure, the practitioner who proceeds without having consulted that available history will not avoid liability based upon the argument that at the time, he or she was unaware that the patient was not a suitable candidate for the procedure. 4
5 $2,433,000 VERDICT - ONCOLOGY - MISDIAG- NOSIS OF "BORDERLINE" OVARIAN TUMOR - UNNECESSARY OOPHERECTOMY - THREE ROUNDS OF UNNECESSARY CHEMOTHER- APY - SEVERE "CHEMO BRAIN" DETERIORA- TION OF COGNITIVE ABILITIES. This was a medical malpractice action in which the plaintiff contended that the defendant oncologist negligently misdiagnosed an ovarian tumor as adenocarcinoma when, in fact, the plaintiff suffered a "borderline" tumor or a "tumor of low malignant potential." The plaintiff maintained that chemotherapy would provide no benefit when addressing a borderline tumor and that the plaintiff was negligently subjected to unnecessary chemotherapy. The plaintiff contended that she suffered a very significant reaction of "chemo brain," which involved a dramatic deterioration of her cognitive abilities that is permanent in nature. The evidence reflected that after the plaintiff developed sharp pains in her side, which she believed was probably related to the stresses of ambulating with crutches after suffering a recent foot fracture; she underwent a CT-scan that showed ovarian growths. After multiple consultations she decided on the hospital with which the defendant oncological surgeon was affiliated for exploratory laparoscopy. This defendant performed the minimally invasive procedure. He removed portions of the tumor from a number of locations within the pelvis and sent them to pathology for frozen section analysis. A half hour later the defendant pathologist called the surgeon in the operating room and reported the tumor as "adenocarcinoma". The defendant oncological surgeon then told the husband that his wife had ovarian cancer and needed a total hysterectomy, including her tubes and ovaries removed in order to save her life and he consented. The defendant oncological surgeon returned to the operating room to perform that surgery while plaintiff was still under anesthesia. Three days following the surgery, the pathology department reported that the permanent section slides demonstrated adenocarcinoma. On that basis, the defendant surgeon ordered chemotherapy. At her first chemotherapy, the plaintiff had a violent reaction, and they had to modify the pre-medication and the rate of delivery of the drugs. The side effects plaintiff suffered from the chemotherapy were severe, and included all of the classic side effects such as night sweats, hot flashes, nausea, vomiting and hair loss, but to an exaggerated degree. After her second round of chemotherapy, the side effects were even worse so she sought out potential clinical trials at the non-party Memorial Sloan Kettering. She brought her pathology slides to Memorial. The day after her return from her third round of chemotherapy she received a call from Memorial Sloan Kettering advising her that she did not have adenocarcinoma, that all she had was a borderline tumor, and that chemotherapy should not be given because chemotherapy does not improve the patient's survival with borderline tumors. The plaintiff never returned for the fourth chemotherapy session. The plaintiff's expert pathologist contended that the slides reflected the absence of any frank invasion or other signs that would support a diagnosis of adenocarcinoma. The expert contended that the tumor was clearly a borderline tumor or tumor of low malignant potential. The defendant's expert pathologists maintained that the slides contained features that were consistent with adenocarcinoma and that the defendant exercised permissible medical judgment. The defendant further contended that the jury should consider that the plaintiff has remained cancer-free for some seven years. The plaintiff elicited testimony from a defense expert that in the case of borderline tumors, studies have established that the rates of recurrence or survival are not improved by chemotherapy. The defendant testified that the slides clearly reflected adenocarcinoma and that the plaintiff's position should be rejected. The plaintiff argued that this testimony varied substantially from the defendant's experts' conclusion that the defendant exercised reasonable medical judgment at coming to a difficult diagnosis. The plaintiff's expert used a digital microscope and projected the images during his testimony. The plaintiff argued that the images were particularly clear and maintained that his discussion of the slides and the absence of any signs reflecting adenocarcinoma should be given greater weight than the interpretations of the slides relied upon by the defendant, which the plaintiff contended were blurry because of the extensive magnification. The plaintiff's treating psychotherapist testified that the plaintiff suffered severe and permanent cognitive deficits as a result of the unnecessary chemotherapy. The plaintiff pointed out that prior to the discovery of the growths; she was a real estate asset manager responsible for a portfolio of multiple commercial properties throughout the United States. The plaintiff was a practicing attorney, and held a master's degree in real estate development from New York University where she graduated as the valedictorian of the class. The plaintiff claimed that since the chemotherapy she cannot even balance her checkbook, cannot focus on any business problems, and lacks the ability to have a cohesive plan of action in problem solving, which prior to the chemotherapy was her forte. The jury found for the plaintiff and awarded $2,243,000, including $1,500,000 for past pain and suffering, $183,000 for past lost wages, and $750,000 for future pain and suffering. During deliberations, the parties entered into a confidential high/low settlement. The plaintiff will receive the high. MEDICAL LIABILITY ANALYSIS In this case, involving the alleged use of unnecessary chemotherapy, a defense argument that the use of medical judgment was appropriate and that the challenge of such judgment by a survivor should be rejected, would generally have been very persuasive. The plaintiff overcame this factor, however, and the apparent contrast between the defense arguments regarding the utilization of medical judgment in coming to a difficult diagnosis, and the steadfast testimony of the defendant himself that the diagnosis was clearly accurate, was felt to be particularly significant. Additionally, the plaintiff rented an electron microscope for the day, projecting especially clear images of the slides during the plaintiff's expert pathologist's testimony. In this regard, it is felt that although costly, the use of such a tool was particularly effective in this case. Regarding damages, the plaintiff, who contended that the chemotherapy caused "chemo brain" that in her case resulted in severe and permanent cognitive deficits, underwent psychotherapy with the same therapist that had previously treated her husband. In this regard, the psychotherapist offered detailed testimony regarding the manner in which the plaintiff, a practicing attorney involved in real estate development, was previously extremely productive, contrasting this history with the manner in which she now cannot even balance her checkbook. In this case, the defendant attempted to avoid liability by testifying during trial that the slides in question clearly reflected andocarcinoma, therefore, the plaintiff's position in this regard should be rejected. However, the plaintiff's experts successfully argued that this testimony varied substantially from the defense expert's conclusions that the defendant exercised reasonable judgment in coming to a difficult diagnosis. The erroneous conclusion by the defendant was also rejected by the opinion of the non-party Memorial Sloan Kettering's experts who, after examination of the pathology slides, concluded without question that the plaintiff did not have any form of andocarcinoma and who opined that she was actually suffering from a borderline tumor, with a further admonition by these experts that chemotherapy as prescribed by the defendants should not have been administered and should certainly not have been continued to be given since such administration is known not to improve survival rates in patients with borderline tumors. Practitioners should take interest in noting that the plaintiff demonstrated through expert testimony that the images were, in fact, particularly clear and reflected a total absence of any frank invasion or other signs that would support a diagnosis of andocarcinoma. In this regard, the plaintiff's experts effectively utilized a digital microscope in court in front of the jury clearly demonstrating clear images unequivocally indicating the absence of any signs reflecting the presence of andocarcinoma. This demonstration before the jury was thought to have been particularly effective to counter the defense presentation of blurred images presented without any discernible or documentary conclusions in furtherance of their position. Another aspect of this case was the defense experts' continuing insistence of relying on the defense of the exercise of reasonable medical judgment to justify the actions of the defendant practitioners in this case in having reached and acted upon an erroneous medical conclusion. This defense strategy was soundly rejected by the judge and jury. Practitioners are once again reminded that the utilization of the exercise of reasonable medical judgment defense so as to justify a practitioner having made an error in a conclusion that later turns out to be erroneous can only be effective where a practitioner's actions, although subsequently determined to be erroneous, were reasonable under all the circumstances involved when that medical judgment was exercised. In this case, the judge and jury clearly determined, despite the qualification of the defense experts to the effect that reaching any conclusion in that regard was difficult, that the actions of the defendants were not reasonably justified under all the circumstances then prevailing. The plaintiff's ex- 5