Jeffrey Segal, MD, JD
Published in Medscape: May 14, 2015 (reprinted with permission) http://www.medscape.com/viewarticle/844060
How Would You Have Handled Patients Like These?
Being sued for malpractice is a traumatic experience. The odds of being sued at least once over one’s career are high. Doctors typically have sufficient professional liability coverage to prevent financial loss. But not all cases get resolved as expected, and doctors may end up with unforeseeable financial loss.
In addition, disciplinary action by a state medical board can also result in onerous remediation, the cost of which can also be surprisingly steep.
It’s one thing when a physician clearly did something wrong and as a result suffers the consequences. But what if the wrongdoing isn’t clear-cut—yet the financial hit to the doctor is still severe? Consider two unusual cases in point.
Did This Doctor Instruct His Patient?
In 2012, a Georgia jury awarded $3 million dollars to the estate of William Martinez. Martinez was 31 years old when he entered his cardiologist’s office. He complained of chest pain radiating into his arm. His cardiologist noted that Martinez was at “high risk” of having coronary disease and ordered a nuclear stress test. The test was scheduled to take place 8 days later.
The day before his test, however, Martinez apparently engaged in some “exertional activity.” He participated in a threesome with a woman who was not his wife and a male friend. While in the midst of this three-way sexual experience, Martinez died. Naturally, his family then sued the cardiologist, arguing that no instruction to avoid exertional activity had been given. The family’s rationale was that had Martinez been properly instructed to avoid high-risk activities, he would have complied.
During the trial, the cardiologist alleged that Martinez was instructed to avoid exertional activity until after the test was completed.
The family initially claimed $5 million in damages, but this claim was reduced by a finding that Martinez was 40% liable for his own death. So the patient was 40% liable; the liability of the doctor was 60%. If the cardiologist’s malpractice policy coverage was for the typical $1 million, it probably leaves him $2 million short.
In states that have implemented substantive tort reform, the sizeable award might have been reduced as a matter of law—if a large portion of that award was attributable to “pain and suffering.” In 2010, however, the Georgia Supreme Court overturned that state’s law, which set a $350,000 limit on damages paid out for pain and suffering in medical malpractice cases. It ruled that the 5-year-old Georgia law violated a person’s constitutional right to trial by jury and a plaintiff’s right to allow a jury to calculate noneconomic damages as it sees fit.
That prior decision has concrete implications for physicians—particularly given that most doctors carry only $1 million in malpractice coverage. As such, understand what your policy limits are if you are sued; assess the likelihood that a judgment will exceed those limits in a particular case if you lose; and see whether limiting your downside risk while still allowing you to have your day in court would be helpful, an option discussed next.
Hedging Your Risk if You Go to Court
The patient died young, with decades of unrealized earning capacity. For the physician being sued, this means that if the plaintiff wins, there is a sizable chance of a multimillion-dollar award. Juries are unpredictable. How can a doctor protect himself against a financially crippling judgment when the alternative is to give the carrier permission to pay an amount up to and including the policy limits?
The answer is a high/low agreement. A high/low agreement allows the doctor to both have his day in court and potentially be vindicated with a verdict of “not liable,” without having his carrier simply pay the plaintiff an amount up to and including his policy limits (a tacit admission of liability) and not risking his entire nest egg should he lose the judgment.
In a high/low agreement, the each side agrees that there is risk to their case. A doctor may be concerned that an injured patient (such as someone in a wheelchair) will elicit a strong emotional reaction from a jury when testifying about an expensive life-care plan. Or a young widow with little earning capacity may likewise generate sympathy with a jury when they learn that her children will not be able to afford college. Such judgments could be as high as $10 million and bankrupt a doctor.
On the other hand, a plaintiff may be concerned that although the injury was great, the doctor did not violate the standard of care—and even if he did, the doctor’s actions did not cause the injury. If the jury agrees, the plaintiff may get nothing.
A contractual high/low agreement between both parties can create settlement “bookends” of, say, $100,000 and $1 million. The doctor gets his day in court. The jury renders its verdict. But each side hedges its risk. If the jury says the doctor is liable for $10 million, the doctor only has to pay the “high” value—or $1 million, typically his policy limit. If the jury finds the doctor not liable, the plaintiff still gets something—in this example, $100,000. In addition, because the jury finds the doctor not liable, there’s no report to the National Practitioner Data Bank.
Because there was no way to prove whether the cardiologist had properly advised his patient—because the advice was not documented, it was the doctor’s word against that of the family of the deceased—the jury could just as easily have found for 100% for the plaintiff or 100% for the defendant. Given this possibility, a high/low strategy might have helped mitigate risk for the cardiologist.
If you are in a situation with a potentially catastrophic payout, consider bringing up the possibility of this arrangement with your carrier.
Was This Surgeon “Grossly Negligent”?
On December 4, 2010, at 11:47 AM, a patient was admitted to the emergency department (ED) of a hospital in California’s Bay Area with a self-reported history of having inserted a bottle into his rectum 2 days earlier. He was in pain and had gone 2 days without a bowel movement. A physician assistant documented distention and diffuse tenderness. A plain abdominal radiograph showed a glass bottle in the mid-pelvis. There was no free air, although the patient was in the supine position.
The surgeon arrived at 2:11 PM and ordered 25 μg of fentanyl for pain.
What happened next resulted in a complaint to the California Board of Medicine. An interview with the surgeon by a board investigator provided the details. The surgeon explained that she had given the patient two options: He could have the bottle removed surgically, or it could be extracted manually in the ED. The surgeon stated that the patient chose the ED route because he did not want to lose his new job. (It is unclear whether this decision was related to a longer perceived recovery time if he had surgery, a higher bill for a surgical procedure, or something else.)
During the interview, the surgeon said that she could feel the bottom of the bottle with one finger but could not move it at all. However, the history and physical documented something else: The surgeon “was able to palpate the bottle and was able to manipulate the bottle and move the foreign body around but was unable to rectally extract it.”
During the first part of her interview, the surgeon stated that she placed her hand into the rectum to remove the bottle while the patient pushed.
Nursing notes indicated that the surgeon placed her arm into the rectum up to her bicep, and the patient was screaming in pain. This same nurse said the surgeon did not want the patient to receive any additional pain medication, because she needed the patient conscious for him to help push the bottle out.
The surgeon then performed a rigid sigmoidoscopy, which showed the sigmoid colon to be dusky and swollen. A new abdominal radiograph suggested perforation. The patient was taken to an operating room (OR) for a laparotomy.
The board of medicine detailed its parade of horribles:
The penalty the board imposed:
The surgeon was licensed to practice in Ohio as well as California. The Ohio Medical Board learned of the California board’s imposed discipline. The Ohio Board wrote to the surgeon stating that it was investigating whether to impose discipline in Ohio as well. The board gave her 30 days from the date of mailing to request a hearing. That deadline was May 12, 2014.
The board received the surgeon’s letter on May 15, 2014, and that letter did not include a request for a hearing. (The record is silent on what information the letter did contain. Presumably, it was an explanation of the surgeon’s treatment of the case, or why she failed to respond to the Ohio board in a timely manner.)
The board revoked her license.
Ignore a State Licensing Board at Your Peril
Many doctors have licenses in more than one state. Discipline in one state often triggers discipline in another state. Most, if not all, licensing boards mandate that the licensee has an affirmative obligation to notify them of discipline in any other venue (for example, another state, the Centers for Medicare & Medicaid Services, or the US Drug Enforcement Administration) within a couple of weeks of the disciplinary action.
Most disciplinary actions are reportable to the National Practitioner Data Bank, which means that the boards of the state or states in which you are licensed will eventually learn about these actions. If you address such an action proactively, it’s considered an “explanation.” If you address it after it’s discovered by a board, without prior notification by you first, it’s considered an “excuse.”
As such, if you hear from a licensing board, don’t ignore it. Most of the time, they are just looking for your side of the story. Statistically, you are likely to prevail. But if you miss a deadline to respond, you will have wasted an opportunity. Make sure that you respond in a timely manner and document that you sent your response by certified mail with return receipt requested, or by FedEx or UPS with a tracking number. Not all boards will impose the same penalty as the first board. Some boards may rule the opposite of the first board.
There are times and reasons for doing a procedure in the ED instead of the OR: timeliness, OR availability, cost, and patient preference. Whatever the rationale, make sure the record supports your thinking. In this case, the surgeon was on the defensive from the beginning because the record was sparsely documented.
Next, it’s okay to stop a procedure if you’re not succeeding. The patient may tolerate some amount of pain if the anticipated outcome is a near-term success. At some point, however, that strategy may change—and then it’s time to go to the OR. A common manifestation of that strategy is a trial of labor that turns into cesarean section.
The attending nurse’s story was dramatically different from the surgeon’s story. The nurse documented her story. It’s hard to believe that the surgeon was able to place her arm (up to the bicep) into the patient’s rectum. But there was no competing narrative in the chart.
Finally, the penalty seems steep both in cost and time. The question is how and why this matter evolved into a board complaint. Perhaps it was a dispute over a residual bill, poor communication, or verbal sparring with the nurse that escalated into score-evening retribution. The record of the case doesn’t address these issues.
The Moral: Take Steps to Limit Your Risk
Even when doctors diligently care for their patients, they may be exposed to unexpected liability. If a patient’s outcome is poor, judgment at trial may well exceed policy limits. You are well advised to work with your business attorney and malpractice defense attorneys to craft strategies that limit your ultimate risk, given the fickleness of fate.
Just as important as your financial nest egg is your ability to earn a living with an unrestricted license to practice medicine. Proper documentation of the medical record and timely responses to board complaints are the best ways to prevent a gray-zone set of facts from evolving into formal discipline by a medical board.
- Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365:629-636.
- Chow A. Man dies during threesome, family wins $3M for medical malpractice. FindLaw. June 1, 2012.http://blogs.findlaw.com/legally_weird/2012/06/man-dies-during-threesome-family-wins-3m-for-medical-malpractice.htmlAccessed March 30, 2015.
- Damage cap for Georgia malpractice lawsuits struck down. AboutLawsuits.com. March 24, 2010.http://www.aboutlawsuits.com/cap-georgia-malpractice-lawsuits-struck-down-9170/Accessed March 30, 2015.
- Formal action against Carolyn Mary Lobo, MD. State Medical Board of Ohio. August 13, 2014.http://med.ohio.gov/formala/35099257.pdfAccessed March 30, 2015.