Jeffrey Segal, MD, JD

by Michael J. Sacopulos

“I’m on jury duty. God help me.” For those of us who have been on jury duty, this thought has probably passed through our head. Perhaps some of us have even muttered it beneath our breath when we received the notice to report into jury duty. But most people know enough not to tweet or write a Facebook post about serving or a jury. Now, enter a Kentucky juror who did exactly that. Her friend then responded “They’re guilty…whatever it is, they’re guilty”.

Earlier this year, this Kentucky juror was sitting on a medical malpractice case. The case involved a newborn child that had suffered a catastrophic and irreversible brain injury due to the umbilical cord being wrapped around his neck. The child lived for 39 days before life support was removed. He died. According to the Kentucky Trial Court Review a $1,183,638 verdict was returned. Thereafter, the hospital sought a new trial/mistrial based on a Facebook posting by a juror.

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This week newspapers reported assorted medical specialty societies are recommending doctors perform fewer tests and procedures. They also urged patients to question the value of these services, if offered.

Some of the over-ordered tests:

1. Routine EKG at routine physical
2. MRI for recent back pain
3. Imaging studies for patient suffering from simple headaches
4. Antibiotics for sinusitis.

 
Two points:

“These all sound reasonable, but don’t forget that every person you’re looking after is unique,” said Dr. Eric Topol, chief academic officer of Scripps Health, a health system based in San Diego, adding that he worried that the group’s advice would make tailoring care to individual patients harder. “This kind of one-size-fits-all approach can be a real detriment to good care.”

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Jeff Segal, MD, JD, FACS

Utah’s highest court ruled that family members can sue a doctor if something goes wrong with their loved one’s care. Doctors, of course, owe a duty of care to their patients. But, if their care affects non-patients…well, that is mostly new territory.

Dr. Hugo Rodier, a primary care doctor, prescribed antidepressants (and other medications with potential psychiatric effects – such as steroids) to his patient, David Ragsdale.

Ragsdale’s wife, Kristy had requested a restraining order against him. Unfortunately, the restraining order was not effective – Ragsdale gunned down his wife. Ragsdale pled guilty to first degree felony murder and is serving a 20 years to life prison term. He supposedly took full responsibility for his actions. One caveat. He said he would not have murdered his wife had he not been on the medications.

Ragsdale’s children (via a conservator) filed a medical malpractice lawsuit. A lower court dismissed the suit noting the plaintiffs were not the doctor’s patients.

Utah’s Supreme Court overruled.

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The Supreme Court of Pennsylvania opened the door to allowing patients to sue for negligent infliction of emotional distress. No physical injury needs to accompany the claim.

Here’s the background. In March, 2003 (yes, 9 years ago), Jeanelle Toney was pregnant and had a pelvic ultrasound. She was assured the results were normal and no fetal abnormalities were identified.

In July, 2003, Toney delivered a boy with significant abnormalities – including partial arms and legs. Toney sued the radiologist who read the scan for negligent infliction of emotional distress. The lawsuit alleged the radiologist had not prepared her for the inevitable shock of witnessing the birth. The experience left her with ongoing grief, rage, nightmares, insomnia, etc. Of note, the suit did not include any medical negligence claim. A typical medical negligence claim must assert physical damages.

A lower court dismissed the lawsuit. It was reversed on appeal. And the Supreme Court of Pennsylvania agreed in December, 2011 that the mother could indeed sue for emotional distress only.

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