Jeffrey Segal, MD, JD

By now it’s common knowledge that a compounding pharmacy in Massachusetts delivered tainted preservative free methyl-prednisolone to a number of hospitals / clinics. The taint was a fungus. And morbidity and mortality have climbed.

Why did doctors/ facilities even order from a compounding pharmacy? Two reasons: First, the typical preservatives used to suppress fungus can wreak havoc if the injection accidentally strays into the spinal sac (CSF). So, preservative-free is, in principle, a good idea as it is impossible to know with certainty the injection is in the epidural space. There are ways to be quite sure – but not completely sure.

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Warren West’s pregnant wife died during an emergency delivery in Nevada in 2005. His daughter was born with severe brain damage.

Attorney Chris Gellner filed a malpractice lawsuit. Another attorney, Dave Haley, served as guardian ad litem for the child.

Here’s what they negotiated. A $238,000 settlement. But, only $30,000 was to go to the daughter.

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by Dr. J.D. – a physician and plaintiff’s attorney, practicing in the Northeast

That the choice to ally with someone who has harmed your patient and to deny your patient critical facts about their own health is an utter betrayal of the trust at the core of the physician-patient relationship is obvious.

However, it is also an excellent way to get yourself sued, and sued in a way that your malpractice insurance will not cover and that your malpractice carrier will not defend.

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by Dr. J.D. – a physician and plaintiff’s attorney, practicing in the Northeast

In Part 1, we discussed that one of the most aggravating issues in the daily life of a medical practice is the request for records by non-physicians. To recap, patients are vociferously certain of what they presume their rights are, third parties try to be become involved where they do not belong, and legal process hovers over many situations. Physicians and their staffs end up feeling caught in the middle. No surprise.

However, most of the anxiety is the result of misconceptions about rules that are usually easily manageable.

There are five basic rules that are the keys to avoiding both anxiety and liability:

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by Dr. J.D. – a physician and plaintiff’s attorney, practicing in the Northeast

One of the most aggravating issues in the daily life of a medical practice is the request for records by non-physicians. Patients are vociferously certain of what they presume their rights are, third parties try to be become involved where they do not belong, and legal process hovers over many situations. Physicians and their staffs end up feeling caught in the middle. No surprise.

However, most of the anxiety is the result of misconceptions about rules that are usually easily manageable.

There are five basic rules that are the keys to avoiding both anxiety and liability:

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by Dr. J.D. – a physician and plaintiff’s attorney, practicing in the Northeast

There is a lot of good that comes from EHR.

Electronic records allow an unprecedented capacity for continuity of care. Tele-medicine permits consults not just across the country but across the world. Just not having to physically transcribe notes saves time. E-prescribing eliminates calls from pharmacies unable to decipher handwriting. Legibility itself prevents many lawsuits.

In fact, as revealed in a 2008 study in the Archives of Internal Medicine, malpractice payouts correlate inversely with EHR use. The authors cited improved follow-up and legibility among the factors that not only reduced adverse outcomes but also made physicians more defensible if they were sued.

On the other hand, EHR carries new risks as the flip side to every advantageous coin.

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by “Dr. J.D.” – a physician and plaintiff’s attorney, practicing in the Northeast

The point at which the physician-patient relationship forms is fundamental to all medicolegal liability.

It is the point at which the physician’s duties to treat the patient according to the standard of care, to obtain informed consent and to provide continuity of care all attach.

It is therefore also the point at which liability for medical negligence, medical battery, and abandonment can also attach.

“When is a patient my patient?” is therefore a critical question.

It has a deceptively simple answer: The physician-patient relationship begins when the physician accepts, agrees to accept, or undertakes to render care to the patient.

Of course, in real life the points at which those events have actually taken place are often not clear-cut at all.

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A buck doesn’t buy a lot anymore. Take a look at some of the verdicts below.

I am not commenting on whether or not there was negligence. Assume for the moment doctors were negligent in each case. The damages are astounding. Remember that most doctors have $1M in liability coverage.

Of course, if the doctor asks the carrier to settle for policy limits and the carrier wants to take the case to trial, the carrier is gambling with its own money. But, if the carrier wants to settle, and you want to roll the dice, the carrier can write the check for $1M and you’re on the hook for the rest if you lose big.

The recent trend has been for higher jury verdicts. Sobering indeed.

$120 million
Martin v. NYCHH et al.
May 2012
Jacqueline Martin, who had a rare skin disorder, was brain damaged after physicians at three New York hospitals allegedly failed to diagnosis the condition. Her family won the verdict against the three medical centers and a neurologist.

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