Acceptable Malpractice Defense Strategy

Started by Wizard of Oz
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Wizard of Oz

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Okay I was watching ER last week (don't flame me yet), and Dr. Kovac was on the stand for malpractice. Here is the case in a nushell--pt presents with pneumonia and has bad veins. After feeling neglected in the ER, he consents to a central line, and they put him on IV antibiotics. Kovac misses a heart murmur, the guy turns out to have an ASD, and a clot (possibly formed from the subclavian) gets tossed into the guy's brain. He is upset about his care thus far and declines TPA when informed of the risks. After living with the after-effects of his stroke for a couple of years, he sues. His wife had left him and taken their kids. Somebody can fill me in if I forgot significant details.

My problem is not with the case itself--the guy didn't consent to a procedure that might have alleviated his symptoms, so I can't feel that bad for him. He did consent to the central line and was informed of his risks, he was just mad that he didn't get better care at County General.

When Kovac was on the stand, however, he said that he was being overworked and understaffed. He also said that he couldn't hear the heart murmur because the ER is noisy. Is there a lawyer who would let his/her client say this as a defense? That stuff is not the patient's problem.

The reason it takes so long to train for a medical career is so that everyone with a license to practice medicine can deal with the elements and provide a standard of care even under the toughest cicrumstances.

Does anyone think it's okay to miss murmurs and then blame it on the noise level in the room?
 
Wizard of Oz said:
Does anyone think it's okay to miss murmurs and then blame it on the noise level in the room?
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What if it was a really quiet murmur? What if the person who actually discovered it did so, but just barely? My little brother's pediatrician heard a heart murmur in him and referred him to a peds cardiologist. The cardiologist listened and listened and listened, and finally he heard it, but he said "Your pediatrician has extremely good ears." So, how loud of a murmur are we talking?

btw, when does the follow-up episode air? I almost never watch TV, but my wife happened to be watching that episode, and I got sucked in.
 
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is your question legal in nature or medical in nature?

legally, no one in a million years should ever say that.

medically, not everyone's skills are created equal. i was told that a medical student should never classify a murmur anything lower than a 3 and that only a cardiologist should say a murmur is 1/6. so, is it reasonable that somone could miss a murmur? i'd say yes, absolutely.
 
I saw that particular episode and I don't think doctor did anything wrong (besides possibly missing murmur, which could've been grade 1 murmur and can only be heard in certain body posture).

Also, why is doctor getting sued in this case? Is it doctor's fault that ER is so damn busy/noisy that you can barely hear anything? Is it his fault that hopsital is understaffed?

The part of the problem is that lot of people don't have insurance -> they rarely go to doctor -> problems don't get detected until its really bad. If he had family physician, he/she could've detected the murmur at annual visits. There is no responsiblity on patient's part?

Also, people use ER services and never pay -> no money for ER to hire more staff. Malpractice lawsuits are only drain money from hospitals and put them into lawyer's pockets.

It is sad that people always blame on physician.
 
TheProwler said:
btw, when does the follow-up episode air? I almost never watch TV, but my wife happened to be watching that episode, and I got sucked in.
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I'm in the central time zone, and it comes on at 2100 Thursdays (right after CSI/Grey's Anatomy). I think that they are running 12 episodes in a row with no repeats, then they're putting some other show in that time slot for 10 weeks, then coming back and doing the last 8 ER episodes. Don't quote me on the figures.
 
Two points about cardiac auscultation:

1) Many studies have shown that cardiac auscultation is not taught very well and that many cardiology residents cannot identify heart murmurs😱
Here's an abstract (a little old, but still applicable): http://www.annals.org/cgi/content/abstract/119/1/47

Here is another one showing that cardiac auscultation skills decrease with time since graduation, ergo experienced doctors are not necessarily better at hearing heart sounds: http://www.sma.org.sg/smj/4601/4601a2.pdf

Therefore, picking up a murmur like those associated with a PFO is not something that every doctor is capable of doing. Add in extra noise, and it is unlikely to be picked up by anyone, but especially not an ER trained physician. Add in that a typical transthoracic echocardiogram would probably not have picked it up either, I don't believe the doctor is at fault. I'm pulling for Luca. I think they're setting him up to get slammed with a huge verdict though👎 . Can't wait to see what happens!🙂
 
The first thing I thought of when they said this guy had a ASD and Kovacs missing it was the basis of the case, was what about every other doctor that this guy had ever seen in his life (this is a congenital condition that either should have been easily picked up before, or was so soft to be reasonable to miss if not specifically looking for it). Maybe they were trying to say he had a patent foramen ovale that was only shunting blood while he was coughing. In that case, there is no reason to think Kovacs should have heard it since the cough would obscure the sound of the murmur. Maybe the cardiologist only heard it because he was examining a patient that had a reason to have something wrong with his heart and therefore did more provocative tests in order to elicit the murmur. Either way, I think it is defensible, especially if there was no evidence of right atrial enlargement or right heart failure when he presented with the pneumonia. However, the "it's too busy and loud in the ER" defense would never really be used by a lawyer that wants to win (it is possible Kovacs said it on his own, but you would think he would realize this is not the way to win a jury over). I will be interested to see what they do with it next thursday.
 
It's LUKA, L U K A damnit!

I'm pulling for Luca.
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My friends named my horse after his character. Apparently it is unacceptable to call a 15.2 hand horse "baby". Spell it properly. LUCA is a girl's name!
 
This is a pretty dubious premise for a lawsuit. The fact that he has an asymptomatic ASD is totally irrelavent to treating pneumonia. If Dr. Kovac heard the murmor, it would have been a red herring until the stroke symptoms appeared. And in that case, he would have offered the same treatment (TPA). If he had DVT or whatever, maybe he should have been on coumadin, but this again has nothing to do with the ASD (a PE is nasty too).
 
if the little does not make sense you must aquit...look at the little the little monkey!!! look at him!!!!!!!
 
DocVirk said:
Therefore, picking up a murmur like those associated with a PFO is not something that every doctor is capable of doing.
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PFOs dont murmur unless you have extremely high right sided pressures.

Why is this guy clotting anyway?

Why is he on IV antibiotics for community acquired pneumonia?

Why do you all watch ER?
 
That defense is as dumb as me saying (I'm ENT) I missed seeing that the patient had epiglottitis because my light source on my scope didn't work.

Or I missed the stroke on the CT because the scan didn't print right.

He screwed himself. Take the pt to a quiet room. Hopefully, he didn't document that there was no murmur, but he could have documented that there was a lot of ambient noise (still no defense). Furthermore, so what? Would a heart murmur have precluded him from using the central line? Doubtfully. Even if he had a clot documented by a cardiac ultrasound, would they not treat the patient with abx via some access anyway?

Stupid show.

I stopped watching that show when Kovac did a pericardiocentesis on a patient for PEA and he stuck the needle into the right chest. Even my 1st grader who says the pledge of allegiance knows it should aim to the left.

Stupid show.
 
DocVirk said:
Two points about cardiac auscultation:

1) Many studies have shown that cardiac auscultation is not taught very well and that many cardiology residents cannot identify heart murmurs😱
Here's an abstract (a little old, but still applicable): http://www.annals.org/cgi/content/abstract/119/1/47

Here is another one showing that cardiac auscultation skills decrease with time since graduation, ergo experienced doctors are not necessarily better at hearing heart sounds: http://www.sma.org.sg/smj/4601/4601a2.pdf

Therefore, picking up a murmur like those associated with a PFO is not something that every doctor is capable of doing. Add in extra noise, and it is unlikely to be picked up by anyone, but especially not an ER trained physician. Add in that a typical transthoracic echocardiogram would probably not have picked it up either, I don't believe the doctor is at fault. I'm pulling for Luca. I think they're setting him up to get slammed with a huge verdict though👎 . Can't wait to see what happens!🙂
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I can attest to that.. I got heart auscultation sounds that I listen to.. at first I couldn't recognize some of the murmurs.. now.. they seem so freakin obvious after listening to them 200+ times..
 
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bumping this in case anybody is still curious about the episode...

TheProwler said:
well? what happened? I didn't get a chance to see it.
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The story line apparently ended tonight. The "victim" (Forrest Whitaker) tried to take Luka as a hostage and drama ensued. He made Luka crush his own hand in a vice. Speak up if you want to know what happened otherwise I'll leave the spoiler out.

As for the case itself, I don't think that any compensation was awarded despite the incredibly weak defense strategy.
 
So I guess I thought that EPs are only responsible for the complaint that they are presented with and it is the patients responsibility to see a primary care doc about general health concerns. Apparently I'm wrong. So each time a patient goes into the ER, its like a physical on steroids? Where they take a very extensive medical history and do a full head to toe exam? I mean, even a family practitioner will limit the scope of a sick exam to a few things. (i.e. top five concerns).
 
Law2Doc said:
I didn't see the show, but blaming an error on being overworked is tantamount to admitting negligence. It is as far from a defense as you can get.
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He was not admitting negligence on the stand. He was explaining why he could not stop by every two seconds to check on Forest Whittaker's patient.

With respect to the murmur, I think it depends on what grade murmur it was. If it was a grade 1, that is hard to hear in a quiet office. Grade 3 or higher might be much harder to argue.
 
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