by Michael J. Sacopulos
A Lawrenceville, Georgia jury earlier this month awarded $3 million dollars to the Estate of William Martinez. Mr. Martinez was 31-years old in 2009, when he entered his cardiologist office. There he complained of chest pain that radiated into his arm. His cardiologist found that Mr. Martinez was at “high risk” of having coronary disease and ordered a nuclear test to be performed. The test was scheduled to take place eight days after Mr. Martinez initial appointment with his cardiologist. The cardiologist alleges that Mr. Martinez was instructed to avoid exertional activity until after the nuclear stress test was completed. The family of Mr. Martinez argues that no such instruction was given.
The day before his nuclear stress test Mr. Martinez apparently engaged in some “exertional activity.” In fact, Mr. Martinez engaged in a three-some with a woman who was not his wife and a male friend. Yes; while in midst of having a three way sexual experience Mr. Martinez died. His family members then proceeded to bring a medical malpractice claim against his cardiologist and the cardiologist’s practice. Presumably the family’s thought was, if William Martinez had been properly instructed to avoid high risk activities, he certainly would have complied. After all, isn’t that evident by his behavior?
The family initially had brought a claim for $5 million dollars but this claim was reduced by a finding that Martinez was 40% liable for his own death. I pause here to note the mathematics. One would assume that engaging in a three-way activity would make him 1/3rd liable for his own damages, but apparently there were facts not known to me that increased his liability 40%. We can only speculate…
In August 2011, the New England Journal of Medicine reported that cardiologist are the specialty of medicine most frequently named in medical malpractice actions. In fact, cardiologist in the United States have a roughly 1in 5 chance of being sued in any given year. Based off the Martinez case, I am beginning to see how these statistics can actually be true. The cardiologist’s attorney indicates that an appeal will be taken. For now, we will all have to wait and see how the appellant court system of Georgia reacts to this case.
No pun intended. But that is just f**king terrible. Now if the family includes a Mrs. Martinez….there might be some hint of displaced aggression.
I will say this….that over the years I have noted that cardiologist who do hospitalize patients for new onset angina tend to be “sanctioned” more by HMO’s, etc.
Things were beginning to rot when I trained in NY…and heard that some hospitals were even turning away unstable angina patients.
I don’t know if it is particularly relevant in this case…..but we….all health care providers who have to deal with insurance….and almost all do….are rapidly becoming nothing more than a human liability shield for a tyrant….an entity that wants control of a process but not responsibility for controlling that process….or worse….makes another party responsible for the process the tyrant controls. But of course the tyrant’s power is based on the public illusion of health insurance as a prepaid health plan. So, the rabble and tyrants are in cahoots together on this one…..while the human shield health care provider is smashed inbetween.
Our EMR (Epic) and presumably others have a function called an “after visit summary” where the patient is handed written instructions. Had the cardiologist had this capacity and used it then this would not have happened. I am aware of an instance in which a patient with rectal bleeding was referred for a colonoscopy but didn’t go and was later found to have cancer. At the time of the initial visit she was handed a paper that warned she could have colon cancer and needed to get this evaluated further. This would go a long way to protecting the physician against developments like this.
Plaintiff lawyer’s logic: something bad happened, thefore it is a doctor’s fault. Someone has to pay.
It doesn’t matter if he told the patient not to exert himself. The cardiologist obviously didn’t do a good enough job explaining because the patient went ahead and had a three way. If the doctor had only told him that 3 way sex was exertion he obviously wouldn’t have had three way sex with another man and a woman. The plaintiff always used good judgement and never engaged in risky behavior.
I wonder what drug’s might have been consumed. The cardiologist should have told him not to take any crack or cocaine or smoke anything. Just further negligence.
It will be interesting to see how lawyers who post on this site will justify this award
Isn’t this a prime example of where our culture has gone? No personal accountability at all. So this jerk – one with no morals at that – risks his life for some perverted pleasure. And when the dice roll death, his family makes out like bandits.
Since when have doctors, cardiologist or not, been advising patients about participating in threesomes? Am I missing something?
This case clearly shows the necessity of clear documentation in the medical record of any instructions given to patients, no matter how obvious that advice should be to the patient. If it had been documented in the chart, even if vague (such as “avoid any strenuous activity”), then this case likely would have resolved differently. We cannot predict what activities patients might perform, but if there is a bad outcome resultant from their actions, it is almost a certainty in today’s environment that they will look for someone to blame, and it won’t be themselves!
And for all the recent attnetion over the Supreme courts hearing of the ACA, all the cable news network attention, and the hype of so called “healthcare reform” what did the physicians get. A fish in the asshole. “Our AMA” didn’t fight for tort reform, didn’t fight for payment reform, nothing. I fully blame the AMA for this. We finally had a chance to put some sanity into the healthcare system and the AMA gave our leverage away for free.
But that doesn’t mean give up. We have to fight. After 10 years of allegiance to what I thought was our only political lobby, I switch to anther organization called Doc4Patientcare.org. I just hope it’s not too late. 🙁
Regarding the post visit summary- Medicare requires that for Meaningful use. You know that is another liability for us physicians. Now that form is supposed to list everything we told or didn’t tell the patient. I don’t think so. Everyone says document, document, document. I’m sorry, It’s just not a practical answer to an difficult situation. So when I give a guy Viagra, I had to put on his summer,y this may give you prolonged erections and to call the doctors if it lasts longer than four hours. And since I gave him levaquin for his uti, I also have to add this may rupture your Achilles. And when I say here a steroid cream – don’t put it in your eye. Come on. Wake up physicians. We need to LOUD UNIFIED voice that says “we are going to take this shit anymore”. Hopefully, that’s why docs4patientcare does.
Cases like this get to be an “argument” about patient instruction or lack of it. The patient or patient’s family say that NO instruction was given, or that it was “inadequate.” The physician says that instructions WERE given.
There is a way out of this. I have seen patients with very severe lower extremity ischemia, some of whom were just a few days before amputation. We had a form that the patient signed (in front of witnesses) that warned them of the risk of impending amputation and that they must see an interventional vascular surgeon immediately for a consultation. I provided them with several choices in their geographical area.
I never touched them or treated them prior to that consult. In some cases I sent them to a hospital ER immediately. Sometimes I took photos and instituted office based vascular exam technology.
I would then have a permanent record of the signed warning form in my chart, witnessed by at least one of my technical assistants. The reason why I didn’t treat them, say by removing a section of ingrown nail, or releasing pus from a lesion is that they (or their attorney) would say it was MY fault that the amputation occurred.
The solution of the above problem and others cardiologists face requires better documentation. Had this documentation been available, there would probably be NO suit and no loss. Every specialty has “dangerous” patients. Documentation is the only defense. A sample form for various precarious situations can be prepared ahead of time. Obviously each case is different, and you should leave room for additional patient instructions on the form, a copy of which is always given to the patient. Naturally they will say they never received it. But you have their signature of PROOF in your chart!
If they refuse to sign, have you and your technical assistant sign the form anyway and date the refusal. It is possible for forensic examination of the form to prove the date, if necessary (carbon dating). However, you will probably have to pay for that study. The threat of sending it for carbon dating will probably end the suit before it starts, especially if you threaten a counter suit.
So far I have never had a patient refuse to sign the form.
Michael M. Rosenblatt, DPM
Unfortunately, no matter what the MD said, documented, or presented to patient, there will ALWAYS be something the doctor omitted and can be used in court.
For example, if MD said, “make sure you & wife don’t have strenuous sex” (not elaborating on strenuous) they would claim the doctor did not specifically mention 3-Ways.
It simply always boils down to the Jury and which attorney put on the better show.
Unless we get Tort Reform, we are Lost!
Won’t come as long as Obama in power but is a part of Republican proposal!
I don’t disagree with any of the post from Zeleznoc. One area of particular agreement is that the trial lawyers are in bed with the Democrat party and NO tort reform will occur with Dems in any meaningful power.
But I think the only way to fight the tainted system is with documentation. For plaintiff’s lawyers, a well documented chart is a nightmare.
A well documented chart may not get rid of the lawsuit, but it tends to push to a much smaller settlement discussion. Since most MP carriers prefer settlement (it’s demonstrably cheaper), they will look to YOUR documentation to provide that impetus.
Your own insurance-hired attorney is evaluating you as well as the case. Don’t think for a moment that their opinion of you doesn’t count. If they have a poor opinion of you they will relate that to your carrier. That can result in your forced separation from the carrier, and/or surcharges.
Your insurance-hired attorney is no more your friend than plaintiff’s attorney. It’s an important distinction often missed by physician defendants. They may be nice, but they are STILL not your friend.