PA's "Error" results in $4 million verdict against the doc who signed chart

[cbrons]

Note: This is from May issue of Medical Malpractice Insights
(see link for full-story)

"Error" results in $11.8 million verdict, $4 million against the doc who signed the
PA's chart
==========

**Hernandez v Morton Plant Hospital et al. – Florida**

**Facts** : A 17 yo male goes to the ED with pain around his R eye. A PA diagnoses
and treats conjunctivitis. The attending physician signs the chart. Four months
later the plaintiff has a ruptured cerebral aneurysm, undergoes emergency surgery,
but suffers brain damage with L sided weakness and seizures. He requires a
caregiver. An attorney is consulted and a lawsuit filed.

**Plaintiff** : The doctor never saw me. My problem was more than just "pinkeye."
You should have asked me more questions. Your history and exam were inadequate. A CT
would have found the aneurysm behind my R eye, and it could have been fixed before
it ruptured. 


**Defense** : You did have conjunctivitis. The diagnosis was correct. You had no
symptoms of an aneurysm, not even a headache. If you did have a headache, you should
have told us. No reasonable provider would have done a CT under the circumstances.

**Result** : Jury verdict for $13.2 million (30% each for PA, MD, hospital) reduced
by 10% to $11.88 million because patient was a poor historian. (DUH!)

**Takeaways** :

\* This is a really spooky case. How does one confuse conjunctivitis with the
sentinel headache of a cerebral aneurysm?! There's got to be more to this story.

\* A now-disabled teenage plaintiff makes a compelling "victim" on the witness stand.

\* Remember, we are liable for the care of our PA's. Even though the physician never
saw this patient, he was responsible to the tune of almost $4 million.

**Source** :

Verdict Search (Wrong diagnosis caused teen’s brain damage, plaintiff alleged | Verdict Search )

**Reference** :

Bernard CD. Physician liability for the actions of midlevel providers. Medical
Economics, Feb 18, 2015. (
Physician liability for the actions of midlevel providers )

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[NYEMMED]

This really is scary...

I never really understood why we need to sign charts on patients we never saw (besides for better reimbursement, etc..)

It just seems to not be worth the risk.

 

[Rendar5]

If you saw the patient yourself would have had the same outcome

 

[Promethean]

If you saw the patient yourself would have had the same outcome

Would it have, though?

Do you think that there isn't an whiff of negligence and malpractice that can be introduced--at least in the minds of the jurors--when they hear that the physician signed a chart for a patient they never saw and examined?

How much more effective could the testimony of a fully trained physician have been? Someone who could have asserted with greater confidence and credibility that this particular patient's conjunctivitis was not a herald of aneurysm? Without having ever touched the patient, any opinion they offered on the matter is just academic conjecture based on hypotheticals. No wonder that didn't carry weight against the sympathetic testimony of a permanently disabled minor.

 

[Mad Jack]

Would it have, though?

Do you think that there isn't an whiff of negligence and malpractice that can be introduced--at least in the minds of the jurors--when they hear that the physician signed a chart for a patient they never saw and examined?

How much more effective could the testimony of a fully trained physician have been? Someone who could have asserted with greater confidence and credibility that this particular patient's conjunctivitis was not a herald of aneurysm? Without having ever touched the patient, any opinion they offered on the matter is just academic conjecture based on hypotheticals. No wonder that didn't carry weight against the sympathetic testimony of a permanently disabled minor.

This is something that is so low on the differential that it would likely not be caught. Every head CT has a 2% increase in cancer down the line for the patient- if we're head CTing everyone with eye pain sans redness and no associated neurological deficits, we're essentially killing people to cover our asses. That's bad medicine.

 

[DrBowtie]

This is something that is so low on the differential that it would likely not be caught. Every head CT has a 2% increase in cancer down the line for the patient- if we're head CTing everyone with eye pain sans redness and no associated neurological deficits, we're essentially killing people to cover our asses. That's bad medicine.

Source for 2%?

 

[HooliganSnail]

I feel like this represents the perfect disaster scenario in a med mal case. Absurd lawsuit from a young person with long term disability. Insurance company does not want to settle, they take it to court, and lost BIG. Juries are weird.

The premise is so absurd, that pink eye in a 17yr old was actually an aneurysm. That this ruptured aneurysm that occurred several months later would have been prevented if ONLY they had done a CTA.

I wonder how they were able to establish getting a CTA on a pink eye as the "standard of care"

 

[Mad Jack]

Source for 2%?

It's actually pretty complicated and depends on age. But in a young person, the risks of CT scans can be pretty high. In older patients, they're pretty negligible.

 

[Mad Jack]

Oh and that's from MMS: Error risks associated with ct scans

 

[doctalaughs]

It's actually pretty complicated and depends on age. But in a young person, the risks of CT scans can be pretty high. In older patients, they're pretty negligible.

I read the Y axis as 0.01-0.08 percent, not 1-8 % which would be 100 fold higher.


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[DrBowtie]

I read the Y axis as 0.01-0.08 percent, not 1-8 % which would be 100 fold higher.


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Yeah. I had 0.1% on top of the 40% lifetime as my used statistics worst case. 2% is too high. Basically 30 CTs = guaranteed cancer which isn't true

 

[MSmentor018]

I thought this was gomerblog or the onion news when I first read it. I clicked on the link and read some of the other stories. It's pretty scary! obviously there's a lot missing to every story so who knows what really happened but this is how it turned out

 

[Frazier]

I read the Y axis as 0.01-0.08 percent, not 1-8 % which would be 100 fold higher.

Agreed.
The chart is indicating 0.02% (vs 2%)

It would make me a bit nervous to maybe give someone 100 head CT's, but not so much to be the one giving their 100th CT.

That said, interesting case. So the patient had complaints consistent with conjunctivitis and then was diagnosed and treated for conjunctivitis? Basically, being sued for missing an incidental finding on a non-warranted scan for a condition where diagnosis is clinical?

 

[NYEMMED]

If you saw the patient yourself would have had the same outcome

But then at least you are getting sued on a patient you did see. This is paying 4 million for a patient you never saw, basically just signing that the chart is written correctly.

I also dont understand the medmal here. You are supposed to have duty to a patient and a breach of the duty. By signing the chart you really don't have a duty correct? You never saw the patient so it should be no more responsible than a consultant that never saw a patient.

 

[doctalaughs]

Agreed.
The chart is indicating 0.02% (vs 2%)

It would make me nervous to maybe give someone 100 head CT's, but not so much to be the one giving their 100th CT.

That said, interesting case. So the patient had complaints consistent with conjunctivitis and then was diagnosed and treated for conjunctivitis? Basically, being sued for missing an incidental finding on a non-warranted scan for a condition where diagnosis is clinical?

Also he had "conjunctivitis" for 4 months with no additional care or follow-up?

Seems fishy.

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[deleted109597]

But then at least you are getting sued on a patient you did see. This is paying 4 million for a patient you never saw, basically just signing that the chart is written correctly.

I also dont understand the medmal here. You are supposed to have duty to a patient and a breach of the duty. By signing the chart you really don't have a duty correct? You never saw the patient so it should be no more responsible than a consultant that never saw a patient.

If you call a consultant and they don't see the patient, they are often held liable. The idea here is the frightening concept of signing the chart is effectively making you a consultant.
My old medical director used to tell us to sign them even if they weren't done on our shift because some insurances pay more for the ones signed (the law says something like 10% have to be signed for appropriate oversight). When I asked why he couldn't do it he simply said he didn't want to.

 

[Dr Mantis Toboggan]

Looks like the plaintiffs EM experts were a Florida PA who teaches at a PA school and the chair of EM at the Maine Medical Center.

I would hope there was indeed more to the story than was presented. Hard to believe a respected professional would otherwise sell out for 10-20k.

I dipped a toe in expert work a few years ago. I suck at it, largely because so much of medicine is shades of gray and with med mal they really want you to be able to defend your side with complete authority.

 

[EMDOC17]

This is more of the problem of the legal system than the care the patient received. 4 months later...4 months! I can't wait to see my next eye pain and CTA them finding a small incidental aneurysm and subject them to more CTA's/MRI's/$$$. Granted we probably don't have all the information but I doubt the eye pain was the telling sign. A young person had a bad outcome so someone is going to pay. I get it that it is terrible that this person is debilitated. I would need some really convincing history for me to CT someone that age for eye pain. Unfortunately we go up against a jury of our "peers".

 

[InternistDO]

From a medical student, when a judgement is this large (presumably above the malpractice insurance policy limit and definitely more than a normal doctor has hanging out in his savings account), do both sides usually settle on a small number, like the insurance cap? I've seen reports of huge judgements, like $20 million or more, that I can't imagine any doctor paying off during their career.

Sorry if this isn't the right place to ask.

 

[evilbooyaa]

I think this should lead to a push to not have EM physicians sign charts on patients they didn't see. Just bill at the 85% or whatever. Or, consider having a non-EM boarded physician whose job it is to babysit the army of PAs/NPs in the ED. The liability is so severe, and I'm surprised there isn't a bigger push to not accept it (although it may hurt hourly incomes slightly to refuse to cover the APPs).

 

[RustedFox]

I think this should lead to a push to not have EM physicians sign charts on patients they didn't see. Just bill at the 85% or whatever. Or, consider having a non-EM boarded physician whose job it is to babysit the army of PAs/NPs in the ED. The liability is so severe, and I'm surprised there isn't a bigger push to not accept it (although it may hurt hourly incomes slightly to refuse to cover the APPs).

This will never fly for many reasons.

Firstly, the MLP is just a physician extender and is acting at the direction of the attending of record. Secondly, money money money. Third, credentialing at facilities includes supervisory duties. Fourthly, I could go on but I don't.

Thus, the reason why I adopt the attitude that I have illustrated in other threads... If you're a physician assistant, than assist me at my direction. Do as you're told. No creativity.

 

[Hamhock]

Looks like the plaintiffs EM experts were...and the chair of EM at the Maine Medical Center.

I would hope there was indeed more to the story than was presented. Hard to believe a respected professional would otherwise sell out for 10-20k.

Does anyone know Mike Baumann? (chief of EM at Maine Medical Center and one of the plaintiff's witnesses)
Faculty

I would really like to hear from him and get his perspective.

If someone knows him, perhaps they could ask him to comment.

HH

 

[Zebra Hunter]

And this is why I will never leave Texas

 

[Mad Jack]

Yeah. I had 0.1% on top of the 40% lifetime as my used statistics worst case. 2% is too high. Basically 30 CTs = guaranteed cancer which isn't true

I'd have to look up the numbers, but I think this might be a misunderstanding of my original statement- the 2% is a relative risk increase, not an absolute risk of cancer. In other words, if your lifetime risk of brain cancer is 1%, 0.02% added overall risk would correspond to a 2% relative risk increase of getting brain cancer.

 

[Arcan57]

I'd have to look up the numbers, but I think this might be a misunderstanding of my original statement- the 2% is a relative risk increase, not an absolute risk of cancer. In other words, if your lifetime risk of brain cancer is 1%, 0.02% added overall risk would correspond to a 2% relative risk increase of getting brain cancer.

Relative risk is a BS concept. If you're looking at absolute risk reduction and your first instinct is to shrug, the relative risk should never impress you.

 

[cbrons]

I'd have to look up the numbers, but I think this might be a misunderstanding of my original statement- the 2% is a relative risk increase, not an absolute risk of cancer. In other words, if your lifetime risk of brain cancer is 1%, 0.02% added overall risk would correspond to a 2% relative risk increase of getting brain cancer.

So if you've had five head CTs, that would make the average person's lifetime risk of of brain cancer 10%.....

EDIT - Oh relative risk. I guess I never understood that concept in statistics TBH.

 

[Status Sciaticus]

And this is why I will never leave Texas

Seconded. Not even a resident yet, but I dont plan on going to any of these states (NY, FL, DC, etc..)
Is there another state that is as friendly as Texas?

 

[engineeredout]

Going through the archives of that blog, I like it/it scares the **** out of me

 

[MSmentor018]

4 mil. what a bunch of bull****. your insurance only covers so much, who pays the rest?

 

[GeneralVeers]

4 mil. what a bunch of bull****. your insurance only covers so much, who pays the rest?

The moral is, don't practice in Florida and other high malpractice states. I know plenty of very high $$$ jobs in Florida, but I refuse to work there.

This is why it pays to own a bigger, more expensive house than you need and homestead it. Even if your equity is more than the homestead amount, judges are hesitant to kick people out of their homes. Also max out your retirement savings. You essentially lock up that equity and lawyers can't get to it, potentially several million dollars worth if you've been working a while.

If I was held personally liable for $4 million, I would just leave the country. I would wish the Plaintiff luck getting any money out of me in Dubai.

 

[Psai]

So if I go to the ED for every belly twinge I have and end up having liver cancer 20 months later, I can also earn millions of dollars for free?

 

[Status Sciaticus]

So if I go to the ED for every belly twinge I have and end up having liver cancer 20 months later, I can also earn millions of dollars for free?

not in Texas you cant.

 

[doctalaughs]

The moral is, don't practice in Florida and other high malpractice states. I know plenty of very high $$$ jobs in Florida, but I refuse to work there.

This is why it pays to own a bigger, more expensive house than you need and homestead it. Even if your equity is more than the homestead amount, judges are hesitant to kick people out of their homes. Also max out your retirement savings. You essentially lock up that equity and lawyers can't get to it, potentially several million dollars worth if you've been working a while.

If I was held personally liable for $4 million, I would just leave the country. I would wish the Plaintiff luck getting any money out of me in Dubai.

Neither your house nor retirement accounts are protected depending on what state you live in. In fact, most states have zero protection for house and very meager protection for retirement accounts.

That's why every attending should have an estate lawyer within a few years of starting for a will but also to setup structures that protect you assets to the maximum extent possible with state law.


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[Warderino92]

Academics in Florida have sovereign immunity right? Probably the only way i'd move back there to practice medicine is if I worked for the govt.

 

[GeneralVeers]

Neither your house nor retirement accounts are protected depending on what state you live in. In fact, most states have zero protection for house and very meager protection for retirement accounts.

That's why every attending should have an estate lawyer within a few years of starting for a will but also to setup structures that protect you assets to the maximum extent possible with state law.


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Here is for Nevada:
Nevada Homestead Laws - FindLaw

I would immediately declare bankrupty. Theoretically it would protect you from any creditors.

 

[Boatswain2PA]

Looks like the plaintiffs EM experts were a Florida PA who teaches at a PA school and the chair of EM at the Maine Medical Center.

I would hope there was indeed more to the story than was presented. Hard to believe a respected professional would otherwise sell out for 10-20k.

I dipped a toe in expert work a few years ago. I suck at it, largely because so much of medicine is shades of gray and with med mal they really want you to be able to defend your side with complete authority.

Where do you see that a Florida PA testified for the plaintiff?

This (Wrong diagnosis caused teen’s brain damage, plaintiff alleged | Verdict Search) shows the lists of plaintiff and defense expert witnesses, and there are no PAs there.

Here is the list of plaintiff witnesses: "Joel Falik; M.D.; Neurosurgery; Greenbelt, MD called by Steven K. Deutsch ■ Bruce Kohrman; M.D.; Neurology; Miami, FL called by Steven K. Deutsch ■ Polly Zimmerman; RN; Emergency Nursing; Chicago, IL called by Steven K. Deutsch ■ Shalon Buchs; M.D.; Emergency Medicine; Gainesville, FL called by Steven K. Deutsch ■ Darlene Carruthers; C.R.C.; Life Care Planning; Buffalo, NY called by Steven K. Deutsch ■ Michael Baumann; M.D.; Emergency Medicine; Falmouth, ME called by Steven K. Deutsch ■ Richard Hamilton; PhD; Neuropsychology; Coral Gables, FL called by Steven K. Deutsch"

From the same source, looks like Dr. Shalon Buchs gave this testimony: "Shalon Buchs, testified that had a CAT scan and other testing been performed on Arcadio, it would have discovered that he had a brain aneurysm behind his right eye. She testified that had the aneurysm been detected, treatment would have prevented it from bursting and causing his brain damage. She testified that the providers' failure to perform proper testing fell below the standard of care. "

Edited: There is a Ms. Shalon Buchs who is a PA at the University of Florida PA program. Faculty » School of Physician Assistant Studies » College of Medicine » University of Florida With this bio she does not seem to present herself as a MD, or having any doctorate degree.

 

[em1234]

Neither your house nor retirement accounts are protected depending on what state you live in. In fact, most states have zero protection for house and very meager protection for retirement accounts.

That's why every attending should have an estate lawyer within a few years of starting for a will but also to setup structures that protect you assets to the maximum extent possible with state law.


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For those interested in learning what their state asset protection laws actually are...
State Asset Protection Laws — Asset Protection Society

 

[Angry Birds]

The moral is, don't practice in Florida and other high malpractice states. I know plenty of very high $$$ jobs in Florida, but I refuse to work there.

This is why it pays to own a bigger, more expensive house than you need and homestead it. Even if your equity is more than the homestead amount, judges are hesitant to kick people out of their homes. Also max out your retirement savings. You essentially lock up that equity and lawyers can't get to it, potentially several million dollars worth if you've been working a while.

If I was held personally liable for $4 million, I would just leave the country. I would wish the Plaintiff luck getting any money out of me in Dubai.

Same here. I'd also leave the country.

 

[RustedFox]

I live/work here in Florida. Yes, your homestead is protected - as is your retirement accounts. The asset protection laws here are rather robust.

 

[GeneralVeers]

Same here. I'd also leave the country.

I would also start deducting cash from my bank account weekly and store it somewhere safe. When you live near casinos it is very easy to answer the question as to where the cash went......

Also another good reason to lease a car, if it's a reasonable rate.

 

[67552931811]

Where would you guys put Illinois in the "this state sucks to practice in" conversation? I'm assuming right along with Florida but hoping I'm wrong, for the better.

 

[TooMuchResearch]

Where would you guys put Illinois in the "this state sucks to practice in" conversation? I'm assuming right along with Florida but hoping I'm wrong, for the better.

It sucks.

 

[Dr Mantis Toboggan]

I figured that summary list incorrectly listed her as MD. What would be the odds of 2 different people with those credentials practicing EM in the same state?

Besides the plaintiffs would want a PA to go after another PA, I would think.

Where do you see that a Florida PA testified for the plaintiff?

This (Wrong diagnosis caused teen’s brain damage, plaintiff alleged | Verdict Search) shows the lists of plaintiff and defense expert witnesses, and there are no PAs there.

Edited: There is a Ms. Shalon Buchs who is a PA at the University of Florida PA program. Faculty » School of Physician Assistant Studies » College of Medicine » University of Florida With this bio she does not seem to present herself as a MD, or having any doctorate degree.

 

[MSmentor018]

So if I go to the ED for every belly twinge I have and end up having liver cancer 20 months later, I can also earn millions of dollars for free?

probably. some doctor somewhere is going to see that you've gotten 1000 CT's and not order it on your next visit then you'll sue for the cancer. I call it the medical lottery. many play it. odds are better than the state lottery

 

[da8s0859q]

Where would you guys put Illinois in the "this state sucks to practice in" conversation? I'm assuming right along with Florida but hoping I'm wrong, for the better.

It sucks, as was mentioned. Badly.

ACEP's 2014 report card ranked them #50 out of the country in medical liability. DC was #51. AAEM did a medical malpractice review of the country awhile back. Illinois scored 0.5 stars on a 5-point scale. I would never -- and I do mean never -- practice in Illinois.

Just think of it like this: Illinois, DC, much of the Northeast, and Florida are not known for being nice to doctors.

Texas, Kansas, Indiana, Colorado, and Idaho in some respects are known for being more pro-physician.

Everywhere else is in between in some ways, good in others, bad in others (case certification, affidavits of merit, expert witness reform, caps, etc).

Beyond there, you pick your poison. Texas pays well generally across the board, but Texas is a take it or leave it kind of place. Colorado gives you a great outdoor playground, but you'll pay for it in much lower salaries on average. And so forth.

 

[Status Sciaticus]

probably. some doctor somewhere is going to see that you've gotten 1000 CT's and not order it on your next visit then you'll sue for the cancer. I call it the medical lottery. many play it. odds are better than the state lottery

Could you not just countersue for time wasted and attorney's fees?

 

[Warderino92]

I always thought it was weird how Indiana has a good malpractice climate when its directly next to Chicago. Would have thought some of the malpractice thinking would have diffused between the two.

 

[67552931811]

It sucks, as was mentioned. Badly.

ACEP's 2014 report card ranked them #50 out of the country in medical liability. DC was #51. AAEM did a medical malpractice review of the country awhile back. Illinois scored 0.5 stars on a 5-point scale. I would never -- and I do mean never -- practice in Illinois.

Just think of it like this: Illinois, DC, much of the Northeast, and Florida are not known for being nice to doctors.

Texas, Kansas, Indiana, Colorado, and Idaho in some respects are known for being more pro-physician.

Everywhere else is in between in some ways, good in others, bad in others (case certification, affidavits of merit, expert witness reform, caps, etc).

Beyond there, you pick your poison. Texas pays well generally across the board, but Texas is a take it or leave it kind of place. Colorado gives you a great outdoor playground, but you'll pay for it in much lower salaries on average. And so forth.

I figured this but was hoping that I was missing something as the ONLY reason I want to live/ practice there is due to family. Just sucks this is the reality. Maybe I can convince the lib family members that texas aint so bad

Thanks for the response, btw.

 

[southerndoc]

Neither your house nor retirement accounts are protected depending on what state you live in. In fact, most states have zero protection for house and very meager protection for retirement accounts.

That's why every attending should have an estate lawyer within a few years of starting for a will but also to setup structures that protect you assets to the maximum extent possible with state law.


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401(k)'s and 403(b)'s have ERISA protection from creditors and no matter what amount they contain, they cannot be touched by creditors. Therefore, it doesn't matter how big of a verdict you have against you, it's safe.

IRA's -- including SEP-IRA's -- have no ERISA protection. Most states have laws that protect assets up to $1 million.

 

[GonnaBeADoc2222]

So this obviously sucks.

But the question that multiple people have asked and really need to be answered is has there ever been a case where a physician was forced to pay out of pocket for a judgement in excess of their med mal policy limit?