Being sued

[pockey]

A situation happened to me over this weekend, and I'm pretty much expecting to be sued. On Friday morning, my attending and I performed a circumcision on a 12 lbs, 6 week old infant. The procedure went smoothly, and so we sent the baby home with the father. Prior to this, informed consent was obtained including the risk of bleeding and infection. I told the father to call or return to the clinic if any problems occured. The next morning, the parents brought the baby in to our clinic, saying that he had been bleeding in "countless" diapers. Hgb was revealed to be around 5. There was blood slowly oozing from a site on the penis. Baby was promptly admitted, transfused 3 units, and discharged the next day after the Hgb was stable.

I called the mom on monday when I found out from my other residents what happened. Her accusations were: 1) There were no written instructions on follow up care 2) We didn't allow the parents in the room during the procedure 3) That we didn't monitor for bleeding after the procedure.

My responses were 1) I explained the risks of the procedure and told the father to call/return if there were any problems, however, I did forget to give the father a copy of the consent form to take with him after he signed it 2) it's our customary practice not to have the parents in the room 3) we looked for bleeding after the procedure and didn't see any. Also, we told her that the baby needed studies to rule out any coagulopathies. She told me to expect future questions as she will be contacting her lawyer.

Question, am I basically screwed? Does anyone have any knowledge of at what length are residents covered by malpractice. Any other advice would be greatly appreciated.

---

Members don't see this ad.

 

[lurkerboy]

I would try not to worry. Obviously you were properly supervised, did everything right (which it sounds like you did) and no one suffered any irrepairable harm. I don't see what their case would be.

Wouldn't it be more like child abuse to let your almost child bleed to death?

 

[edfig99]

talk to your hospital's risk management department -- that's what they're there for. i wouldn't talk to anyone else about the case just because the details get muddied after a while. there's almost always a way to eek something out. there should've been some type of written discharge plan (even if you didn't give it, the discharge nurse representing the hospital side of things should have) and that's how they can hook into you (really the hospital and attending). the risk management department can also tell you about the insurance limits and details of the malpractice plan that covers you as a resident. as long as your activity was part of your duties as a resident, your hospital malpractice will cover you should g-d forbid you ever need it.

fortunately most adverse events don't make it all the way up to the courts, but it's good practice to talk to your risk management people whenever there is a hint of any potential for 'evil'. in private practice you'd talk it over with your insurance carrier and their lawyers.

 

[Andrew_Doan]

Pockey,

If the baby is fine, then there is no case. No harm... no foul.

In addition, bleeding is a known complication of circumcision. If a patient bleeds after the procedure when it was performed within the minimum standard of care, then this is not malpractice.

I discussed malpractice and the criteria that must be met for malpractice in this thread:

http://forums.studentdoctor.net/showthread.php?s=&threadid=98721

If you read my case, someone went blind after cataract surgery. However, it would be difficult to prove as malpractice.

Good luck, and don't worry.

 

[Homunculus]

Originally posted by Andrew_Doan
Pockey,

If the baby is fine, then there is no case. No harm... no foul.

In addition, bleeding is a known complication of circumcision. If a patient bleeds after the procedure when it was performed within the minimum standard of care, then this is not malpractice.

I discussed malpractice and the criteria that must be met for malpractice in this thread:

http://forums.studentdoctor.net/showthread.php?s=&threadid=98721

If you read my case, someone went blind after cataract surgery. However, it would be difficult to prove as malpractice.

Good luck, and don't worry.

i agree. the baby received the standard of care. and if the baby does turn out to have a coagulopathy, then they *really* don't have a case, lol. they should be thanking you instead

honestly, i think after the initial reactionary stuff wears off the parents will rethink their "case" against you. they'll have a hard time finding a lawyer that will take a case like this, because the potential payoff is *so* low. in this case, lawyers' greed is a good thing

 

[Foxxy Cleopatra]

Sounds like in the end, everything is fine. I have never seen family members allowed to witness a circumcision and I think that is a good thing.

I have run out of fingers to count the number of times I have been threatened, (not for any malpractice or wrongdoing,) but simply because the family (more often than not) is simply angry, looking for some $, or is incapable of comprehending basic explanations and instructions.

I agree with the others in that I would:

1. Contact risk management

2. Make sure you document EVERYTHING, including the fact that you DID properly instruct the father.

3. Always remember to CYA and that the average comprehension level of a jury is the 5th grade, so when in doubt, explain things to people on a level that a 10 year old could understand.

4. Don't worry too much- it is probably just an angry threat. Like in your situation, none of mine were malpractice and the patient ended up being perfectly fine. I have been called every name in the book and have been told that they were going to "make sure that I am unemployed and starve" yet nothing has ever amounted from the threats.

good luck, and don't feel bad

 

[MacGyver]

Originally posted by Foxxy Cleopatra
the average comprehension level of a jury is the 5th grade, so when in doubt, explain things to people on a level that a 10 year old could understand.

The bottom line is that the jury is going to listen to the medical experts, not the defendant. If the plaintiff gets a well respected doctor who said you screwed up, then you are **** outta luck.

This whole thing about the jury having to decide complex medical matters is WAY overblown. Med mal plaintiffs are REQUIRED to have a medical doctor testify on their behalf LONG BEFORE trial ever gets underway.

Its not the jury that is screwing over doctors, its the PLANTIFFS MEDICAL EXPERT who does all the damage. The plaintiff has NO CHANCE OF WINNING without that medical expert.

 

[margaritaboy]

Originally posted by MacGyver
The bottom line is that the jury is going to listen to the medical experts, not the defendant. If the plaintiff gets a well respected doctor who said you screwed up, then you are **** outta luck.

This whole thing about the jury having to decide complex medical matters is WAY overblown. Med mal plaintiffs are REQUIRED to have a medical doctor testify on their behalf LONG BEFORE trial ever gets underway.

Its not the jury that is screwing over doctors, its the PLANTIFFS MEDICAL EXPERT who does all the damage. The plaintiff has NO CHANCE OF WINNING without that medical expert.

Well, sort of.

According to the medical malpractice attorney I spoke with, in a medical malpractice case the plaintiff's lawyer can almost always manage to find a specialty doctor to testify to their side of the case.

In fact, some of these specialists become 'professional testifiers' whom are compensated by plaintiff's attorneys, and simply make their living that way. But their expert opinion is no more immune to doubt, alternative arguments, or cross examination than anyone else's. Additionally, their credibility can be diminished by pointing out that they have testified in XX number of cases in XX number of states over the past few years. It makes them look a little more mercenary.

This all according to what I was told by the medical malpractice attorney, and my mentor whom endured the above, and won the case.

Pockey, even if you make it to court, which the posters above and myself doubt, the odds are still on your side. Even so, talking to Risk Management sounds like an excellent idea.

 

[Whisker Barrel Cortex]

In one of the cases in which my attending was a witness for the defense, the plaintiff had a retired neurologist testifying about a urologic complication. The defense asked this neurologist about simple anatomy on a pelvic CT and he was waaaay off, which my attending pointed out when he took the stand. I think he identified the psoas muscle as the corpus cavernosum! Its pretty pathetic and I think even uneducated juries can take into account the actual expertise of an "expert witness."

 

[ERMudPhud]

To the original poster:

I knew two people who were sued during residency. Both were eventually dropped from the cases although it took several years. They both admitted that it was a good introduction to how medmal works and that they are probably better and more comfortable as doctors after having gone through it. They also admit it was hell at the time and intermittantly hell over the subsequent years when ever they had to do depositions, hearings etc... Keep in mind that the majority of patients who threaten to sue never do and the one who do sue don't win in the majority of cases. Talk to risk management. In addition to helping you with the legal aspects they can probably give you some contacts to help with the psychosocial aspects of being sued.

 

[juddson]

Pokey,

I'm an attorney. I'll not go into the specifics of the case (it was pretty well handled above). My only advice here would be, despite how tempted you might be to find advice on this forum, your best interests are served by NOT giving out information to anybody but your hospital, superiors and your attorney.

Judd

 

[fourthyear]

Sounds like this mom was just very upset about the whole thing, maybe after your conversation with her she might think it through a little more and decide not to blame you. Especially since you voluntarily called her to check on the baby and discuss the situation - that shows some caring and compassion.

I've heard one thing time and time again - patients don't generally sue doctors they like. Patients care more about your bedside manner than your actual skills. So even docs who make mistakes, but have great relationships with their patients get sued less than ones who are jerks, even if the jerk is smarter or more skilled.

So my best advice would be to try to be calm, attentive, and cooperative with the mom if she speaks with you again, rather than being defensive/offensive about how she is a little out of line accusing you of not giving follow-up instructions or explaining the procedure's risks, etc. It sounds like you handled things well when you talked to her that first time.

I don't think you're in trouble really - you did the procedure consistent with standard of care, everything was appropriate, and the baby turned out fine, so hopefully she'll calm down and let it go. If not, it sounds like you did everything appropriately so I can't see how a jury would find any fault with what you did. Parents don't watch such procedures - that's just not standard of care. Consent was obtained properly, so what could someone blame you for?

Unfortunately, lawsuits have become the American way, and I think it's sad we all have to be so fearful of being sued even as residents.

 

[edmadison]

Originally posted by juddson
Pokey,

I'm an attorney. I'll not go into the specifics of the case (it was pretty well handled above). My only advice here would be, despite how tempted you might be to find advice on this forum, your best interests are served by NOT giving out information to anybody but your hospital, superiors and your attorney.

Judd

I too am an attorney and would mirror this advice. I would also add that the risk management department and the hospital arrorneys don't work for you and may not be looking out for your best interests. If the case heats up, you best keep your eyes open; and if it really heats up, you may want to consider finding someone that represents you alone.

Ed

 

[pockey]

I appreciate all the advice and comments made. They give me a lot to think about. Thank-you.

On a side note, someone mentioned the psychosocial aspects of this. It's been a little rough. One medical assistant told me "this is the talk of the clinic". Also, since I'm in a small program, word travels fast. By the time I had shown up on monday morning nearly all the residents had already known about it. I'm probably being paranoid, but I feel a different vibe/stigma from some residents and staff now.

I know that it just go along with it, and is part of life. Ultimately I hope it has helped me in a lot of ways...and most importantly future patients, i.e. we're developing written aftercare instructions now for all clinic procedures.

Medicine truly is a humbling field.

 

[Sessamoid]

I remember when one my residency colleagues was sued during residency. For a few days we all felt a little like walking on eggshells. I felt like we were all treating him similarly to how you would if they had a recent death in the family or some other personal tragedy.

 

[MacGyver]

Originally posted by margaritaboy
Well, sort of.

According to the medical malpractice attorney I spoke with, in a medical malpractice case the plaintiff's lawyer can almost always manage to find a specialty doctor to testify to their side of the case.

In fact, some of these specialists become 'professional testifiers' whom are compensated by plaintiff's attorneys, and simply make their living that way. But their expert opinion is no more immune to doubt, alternative arguments, or cross examination than anyone else's. Additionally, their credibility can be diminished by pointing out that they have testified in XX number of cases in XX number of states over the past few years. It makes them look a little more mercenary.

I agree, thats my whole point. Without medical "experts", plantiffs attorneys wouldnt have a chance in court. Its these medical "experts", not the jury, and not the lawyers, that are most responsible for the seriousness of a particular malpractice case. Without them, the plantiff has ZERO chance of winning.

 

[MacGyver]

Originally posted by Whisker Barrel Cortex
In one of the cases in which my attending was a witness for the defense, the plaintiff had a retired neurologist testifying about a urologic complication. The defense asked this neurologist about simple anatomy on a pelvic CT and he was waaaay off, which my attending pointed out when he took the stand. I think he identified the psoas muscle as the corpus cavernosum! Its pretty pathetic and I think even uneducated juries can take into account the actual expertise of an "expert witness."

Most states have laws which state that plantiffs experts MUST be in the same medical specialty as the defendant doctor.

 

[edmadison]

Originally posted by MacGyver
Most states have laws which state that plantiffs experts MUST be in the same medical specialty as the defendant doctor.

Uh, sorry this is not true. Expert witnesses need only have and opinion related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the court AND that the opinion be based on special knowledge, skill, experience, training, and education. (I stole most of this from the California Evidence Law, but its similar to other jurisdictions).

Your statement also doesn't make sense. If a patient dies of an MI do you think the court is going to exclude a cardiologist just because the patient was treated by an emergency physician? The reliability of the witness is an issue for the trier of fact (JURY). If the plaintiff wants to put on a psychiatrist to testify as to the standard of care in the treatment of an MI, it can. However, the defense attorney is free to point out that the expert has not worked in an ED since medical school and has no experience treating an MI.,

Ed

 

[ERMudPhud]

Originally posted by pockey
On a side note, someone mentioned the psychosocial aspects of this. It's been a little rough.


i.e. we're developing written aftercare instructions now for all clinic procedures.

Medicine truly is a humbling field.

Hang in there it won't be the last bad outcome in your hospital. The stigma will fade with time. As Sessamoid said when residents in my program were sued we all felt a little weird but quickly realized "There but for the grace of god go the rest of us" We've all had mistakes or near misses. The important thing in this case is that the ultimate outcome was ok.

Written after care instructions are a must in my mind.

 

[ERMudPhud]

Originally posted by MacGyver
Most states have laws which state that plantiffs experts MUST be in the same medical specialty as the defendant doctor.

As edmadison pointed out, another unsupported and essentially wrong statement by MacGyver. The use of professional experts outsides the defendents field is unfortunately common. One point where a good defense attorney can attack this is in the area of standard of care. An interventional cardiologist testifying as an expert witness does not practice under the same standard of care as a rural ED doc treating an MI at a hospital with no cardiologist. The unfortunate case is that for most cases you can find some sort of expert to testify to almost anything. It comes down to dueling experts. As an ED doc I once testified in a case where they tried to get me to discuss surgical repair and long term sequelae of complex facial fractures--something I'm clearly not an expert on. A friend of mine was sued over a young adult patient who died of meningococcal sepsis. The plaintiffs expert-neither an ED or ID specialist- testified that my friend should have recognized impending sepsis from the patients vitals T=101.5 P=120 BP 110/60 R=24. We all laughed at this "expert" testimony since I probably see 5-6 febrile adults with viral syndromes with these exact vitals most shifts. Fortunately, the jury didn't buy the experts opinion any more than the rest of us.

 

[edmadison]

Ah yes, the dueling expert -- excellent point mudphud. Here's the ugly thing:

Lets assume for argument's sake that there are 100,000 internists in the country. 99.9% of them believe that that a given intervention is hogwash. That leaves 1% who think it is somewhere between OK and awesome. The problem is that you can't call 99,900 witnesses to testify for you, you can only aford two or three. The guy suing you need only find two or three of the 100 idiots out there. To the jury it looks like a tie. The is especially true if there are some hokey journal articles out there on the topic. If the idiot experts happen to have grey hair, a beard and attended medical school at Harvard (the one university Ma and Pa Kettle have heard of) you are as good as done.

This is yet another reason why insurance companies encourage you to setlle.

Ed

 

[juddson]

Edmadison brings up a good point regarding expert witnesses. I've often wondered to what extent treatises (hopefully the kinds updated frequently) are used in med mal cases. Shouldn't there be written standards of care for various procedures and conditions, not unlike the Restatements of Law we are so familiar with.

Judd

 

[edmadison]

There certainly are some resources of this type, they're called clinical practice guidelines. These would be effective evidence for the defense (if they were followed). The problem is that the standard of care varies depending on the community. As was mentioned in a parallel thread, a gp in a rural center acute care center will not be held to the same standard of care as an EP in a urban trauma center.

Ed

 

[juddson]

Originally posted by edmadison
There certainly are some resources of this type, they're called clinical practice guidelines. These would be effective evidence for the defense (if they were followed). The problem is that the standard of care varies depending on the community. As was mentioned in a parallel thread, a gp in a rural center acute care center will not be held to the same standard of care as an EP in a urban trauma center.

Ed

Wait a minute. I thought the locality rule had pretty much been abandoned in medical malpractice cases. Rural Dr. greenacre is now held to pretty much the same standard as big city doctor blackacre, no?

Judd