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One of the more interesting is that of Peter Rosen. A Google of “Peter Rosen ACEP Censure” should be sufficient.
Mal practice case: snakebite
- Thread starter pkwraith
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There should be a weekly e-newsletter exposing absurd and dubious 'expert' witness testimony and those giving it. Make them famous.
I can provide hypothetical examples as I only provided an analysis of the cases and did not see them through.
patient having anaphylactic shock due to giving a medication they said they were not allergic to. Also accused them of using an iv medicine when they should have been given an oral medicine. (The medication was a standard one too that every physician I know uses for this dx). I don’t remember the expert report but the lawyers language clearly indicated an understanding of the medical issues to an extent that implied they had a witness to back them up.
Another one where the patient was ruled out for a Torsion with an exam consistent with a specific alternative dx and a radiology report confirming an alternate dx, and then had a torsion a week later.
The third I will adjust the facts to avoid identification: patient had a fall and negative knee X-rays on Friday night, dx with a knee contusion. Gave a knee immobilized anyway. Told to follow up with their doctor on Monday. They did and the doctor thought it was actually a meniscus tear and sent for an MRI They sued for 3 days of unnecessary pain due to misdiagnosis. And said the doctor should have been able to dx definitively based on clinical exam alone (let’s say they did not do an Apley compression test).
I do recall a public case years ago for a person had a heart attack YEARS after he went to an ED and was diagnosed with htn and told to followup with a primary care doctor. . He was never told WHEN to follow-up. That one is why I was always taught to specify a follow up time In dc instructions. I’m assuming there was an expert on that case.
patient having anaphylactic shock due to giving a medication they said they were not allergic to. Also accused them of using an iv medicine when they should have been given an oral medicine. (The medication was a standard one too that every physician I know uses for this dx). I don’t remember the expert report but the lawyers language clearly indicated an understanding of the medical issues to an extent that implied they had a witness to back them up.
Another one where the patient was ruled out for a Torsion with an exam consistent with a specific alternative dx and a radiology report confirming an alternate dx, and then had a torsion a week later.
The third I will adjust the facts to avoid identification: patient had a fall and negative knee X-rays on Friday night, dx with a knee contusion. Gave a knee immobilized anyway. Told to follow up with their doctor on Monday. They did and the doctor thought it was actually a meniscus tear and sent for an MRI They sued for 3 days of unnecessary pain due to misdiagnosis. And said the doctor should have been able to dx definitively based on clinical exam alone (let’s say they did not do an Apley compression test).
I do recall a public case years ago for a person had a heart attack YEARS after he went to an ED and was diagnosed with htn and told to followup with a primary care doctor. . He was never told WHEN to follow-up. That one is why I was always taught to specify a follow up time In dc instructions. I’m assuming there was an expert on that case.
Take a look at any Florida malpractice case brought forward in the last several years. All cases brought forth in Florida require an expert witness to say there was negligence. If there is a ridiculous case , there was an expert somewhere backing it up.
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Please forgive the detour, but how often do you guys see a black widow, brown recluse or some other horrible arachnid bite case? Is there a crofab equivalent for these???
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I thought having protocols approved through MedExec might offer some protection as it's officially endorsed by the hospital at that time. At the end of the day though, it's ultimately the physician who is responsible for what treatment is provided and the outcome. One of the medmal attorneys I know says at the end of the day, it's a toss up if a protocol offers any defense or not.
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In EM, pts (esp in cities, and in the South) complain of "spider bites", which are, usually, VERY straightforward abscesses. No spider is involved. Once, in 2007, a pt came in, and said she was bitten by a spider. She was telling the truth, because she brought it with her: Latrodectus mactans. It had the pathognomonic red hourglass on the abdomen. Yes, a black widow. At that time, there wasn't any antivenin, just supportive care. I don't know about now. For a brown recluse bite (Loxosceles reclusa), the differential diagnosis includes cigarette burn, and cutaneous anthrax. Again, I don't know about an antivenin, but, that bite needs surgical excision of the bite site.
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Recluse bites all the time. No antivenom for that. Systemic loxocelism (not common but it happens) gets admitted. A lot of times tissue you think will be toast comes back totally fine after some weeks, so early surgical excision is no longer routinely recommended from what I’ve seen. I send most to wound care for follow up.
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“Most”, like you’ve seen more than 1 or 2 in your career?
How are you even confirming it was a brown recluse without the patient bringing it in or snapping a picture?
I’d say 99.9% of the time a patient claims recluse bite, there is no evidence for it whatsoever. Recluse bites are actually likely much rarer than reported hence the name “recluse”.
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Most bites are from the meth spider. The only antivenom is tincture of time and antipsychotics.
I know one physician in our group gave anti-venom once for a black widow bite confirmed by picture. The patient developed moderate to high systemic toxicity. I’ve never personally given anti-venom to a spider bite. I’ve seen several confirmed brown recluse bites. That I know of, only one ever required surgical intervention. Most resolve just fine.
I know one physician in our group gave anti-venom once for a black widow bite confirmed by picture. The patient developed moderate to high systemic toxicity. I’ve never personally given anti-venom to a spider bite. I’ve seen several confirmed brown recluse bites. That I know of, only one ever required surgical intervention. Most resolve just fine.
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In hindsight “all the time” is an exaggeration. But I’ve worked in the SE for over 20 years, including 12 at a huge referral center.
1-3 times a year or so I’ll diagnose it predominately based on classic appearance (central necrosis, “red white and blue” pattern etc). It’s true that 99% of the people I see who say they were bitten by a spider probably were not.
I believe I have personally seen more than 30 patients I am quite confident were bitten by a recluse.
My old house had 100s of recluse spiders in the attic (before we called the exterminator lol). I even caught one so one my partners could photograph it for education/publication. They are super common in my area.
Ultimately I don’t think diagnosing it is all that important most of the time, other than avoiding surgical excision which may be unnecessary.
I am aware of one child who died from systemic loxocelism during my time in this area. Thankfully that is extremely rare.
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I see "spider" bites all the time. About 5 times/shift 🤣
Who knows maybe I've seen real recluse bites, and even admitted them, but I'll never know.
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The number of times someone has told me a spider bit the back of their throat in their sleep and the patient actually has viral pharyngitis is astounding.
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People actually say this? Wow…
I think I am the only physician at my hospital / ED who has treated a snake bite in living memory (25+ years). We do have scant populations of copperheads and timber rattlers nearby. In theory we stock crofab. Minor changes for reasons—
Drunk dude gets bitten by a “baby rattlesnake” (Identified by his Texan buddy…) in his dominate hand. Is intoxicated AF, has a bite mark, minimal swelling, maybe slight parathesia.
Labs, serial exam, call to regional poison control.
I would have gotten more help by calling the local Domino’s and asking them if I should suck the poison out of the wound. Literally “i have no idea about snake bites” and to my more pertinent question “we have no idea who stocks crofab”. They suggested every big tertiary center nearby had some in stock, of course.
Being the prodigal son of one of these, I knew for a fact they had none in stock. Rapid mobilization of the curious crew of nurses, techs, and UCos (we don’t see many snake bites)— every level 1 trauma/tertiary center in a 100mi radius says “AHHAHAHA crofab what? Nah man”. We get this info in 5 minutes. We don’t just call the transfer centers, we hit up the EDs and pharmacies. Strike out. I have someone on every phone in the ED, a ****ing smooth oiled information network.
Suddenly a bunch of outdoor-type-law-enforcement shows up, with a dead juvenile copperhead (they like to drop a lot of toxin…) and the patient visibly starts swelling and bitching about weird parathesias and pain.
Game on. Re-call poison control. No help. I recommend they call Colorado (I heard they know snake bites!) or Texas or Utah or something… don’t you have a mutual-support network?? This gets an audible huh and they go off on a mission. First they recommend the Zoo, and I ask if the Zoo is open at 10pm on a Friday…
Nursing supervisor finds CroFAB which was produced in about 1982, in very dusty boxes. Suddenly I’m on a three-way-call with some other state toxicologist (a lovely human!) who does teach me that expired, underdosed crofab is better than no crofab. We’re engaged with the enemy now.
Our intelligence network has continued working, and discovered a large community hospital not-too-far-away stocks a solid cache of crofab.
I call their transfer center— “we don’t have that. If we do, everyone has it. We are full. Decline transfer. *HANGUP*”
Huh.
I may, at that point, call the operator at that hospital and put on the charm. I may mention being an ER doc. I may NOT mention that I’m not one of THEIR ER docs. I may get connected with their inpatient pharmacist. I may continue the same ploy. I may say I have a guy with a copperhead bite (COOL HUH!). I may ask which exact PIXIS the crofab is in, and how many vials, because I might need a few. I may learn that X are in ED PIXIS #3, and Y are in reserve in the pharmacy. Live saver, thank you Ms. Pharmacist. I may go back to sweet talking the operator. I may get directly connected to an ED attending. I may pitch them I have a worsening dominate hand copper head bite with underdosed crofab and I’m out and he needs more. And maybe a fasciotomy. My brother in EM may hesitate, saying he doesn’t know about their ability to handle bites vis-a-vis crofab. I might tell him to ask his resource RN to check PIXIS #3, where I am confident he will find X vials. He does this. I sense the amazement on his end. He starts to ask how. I tell him don’t worry, the issue is his transfer center wants to **** me. But we… yes WE.. want to save this man’s hand. Plus have you seen a good snake envinomation? You know you want to accept this transfer… it’ll be fun. In classic EM doc fashion my brother in christ immediately says “my name is XXXX, please send him now my shift is over in 3 hours and I need this”.
Anyway I’m sure there are 2984 ways I could get sued in the above story, of which only like 7 are my fault. Dude’s hand ended up doing well, but he soaked up a lot of crofab.
Drunk dude gets bitten by a “baby rattlesnake” (Identified by his Texan buddy…) in his dominate hand. Is intoxicated AF, has a bite mark, minimal swelling, maybe slight parathesia.
Labs, serial exam, call to regional poison control.
I would have gotten more help by calling the local Domino’s and asking them if I should suck the poison out of the wound. Literally “i have no idea about snake bites” and to my more pertinent question “we have no idea who stocks crofab”. They suggested every big tertiary center nearby had some in stock, of course.
Being the prodigal son of one of these, I knew for a fact they had none in stock. Rapid mobilization of the curious crew of nurses, techs, and UCos (we don’t see many snake bites)— every level 1 trauma/tertiary center in a 100mi radius says “AHHAHAHA crofab what? Nah man”. We get this info in 5 minutes. We don’t just call the transfer centers, we hit up the EDs and pharmacies. Strike out. I have someone on every phone in the ED, a ****ing smooth oiled information network.
Suddenly a bunch of outdoor-type-law-enforcement shows up, with a dead juvenile copperhead (they like to drop a lot of toxin…) and the patient visibly starts swelling and bitching about weird parathesias and pain.
Game on. Re-call poison control. No help. I recommend they call Colorado (I heard they know snake bites!) or Texas or Utah or something… don’t you have a mutual-support network?? This gets an audible huh and they go off on a mission. First they recommend the Zoo, and I ask if the Zoo is open at 10pm on a Friday…
Nursing supervisor finds CroFAB which was produced in about 1982, in very dusty boxes. Suddenly I’m on a three-way-call with some other state toxicologist (a lovely human!) who does teach me that expired, underdosed crofab is better than no crofab. We’re engaged with the enemy now.
Our intelligence network has continued working, and discovered a large community hospital not-too-far-away stocks a solid cache of crofab.
I call their transfer center— “we don’t have that. If we do, everyone has it. We are full. Decline transfer. *HANGUP*”
Huh.
I may, at that point, call the operator at that hospital and put on the charm. I may mention being an ER doc. I may NOT mention that I’m not one of THEIR ER docs. I may get connected with their inpatient pharmacist. I may continue the same ploy. I may say I have a guy with a copperhead bite (COOL HUH!). I may ask which exact PIXIS the crofab is in, and how many vials, because I might need a few. I may learn that X are in ED PIXIS #3, and Y are in reserve in the pharmacy. Live saver, thank you Ms. Pharmacist. I may go back to sweet talking the operator. I may get directly connected to an ED attending. I may pitch them I have a worsening dominate hand copper head bite with underdosed crofab and I’m out and he needs more. And maybe a fasciotomy. My brother in EM may hesitate, saying he doesn’t know about their ability to handle bites vis-a-vis crofab. I might tell him to ask his resource RN to check PIXIS #3, where I am confident he will find X vials. He does this. I sense the amazement on his end. He starts to ask how. I tell him don’t worry, the issue is his transfer center wants to **** me. But we… yes WE.. want to save this man’s hand. Plus have you seen a good snake envinomation? You know you want to accept this transfer… it’ll be fun. In classic EM doc fashion my brother in christ immediately says “my name is XXXX, please send him now my shift is over in 3 hours and I need this”.
Anyway I’m sure there are 2984 ways I could get sued in the above story, of which only like 7 are my fault. Dude’s hand ended up doing well, but he soaked up a lot of crofab.
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Janders for the win....I've had to pull some miraculous stuff to get transfers, but I've never told the receiving doc where the medication was in their own ED.
It's unbelievable what we have to do sometimes.
It's unbelievable what we have to do sometimes.
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We see so many copperhead bites that we have a decent stock of Crofab on hand at all times.
However, trying to get transferred into my facility can be difficult when we have 125 admission holds (yes, there were that many in our nearly 180-bed ED the other day).
However, trying to get transferred into my facility can be difficult when we have 125 admission holds (yes, there were that many in our nearly 180-bed ED the other day).
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Dude, that's Emperor Palpatine level force power transfer shenanigans. That's worthy of a master class. The deception with the OSH pharmacist would make a KGB agent blush.
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Just to clarify, and I 100% believe it happened, but is this not a major EMTALA violation?
It would seem that if it is anyone’s job to be well versed in knowing or finding out what a hospital’s capabilities are, it would be the transfer center’s job…
I too have really enjoyed the few times in my career where I have called a different hospital as “Dr HOHopeful” and gotten help from their operator, it feels like being a secret agent although to be honest I bet you could have called and just said “this is Dr X from Y hospital I really need to talk to your pharmacy” and they would still transfer you.
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Have to have capability and capacity. Sounds like no capacity.
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That's still some of the biggest **** in medicine. The ED creates capacity all the time when there is none, especially when a patient truly needs it. Hospitals would work so much better if they were ran like EDs rather than like 9am to 3pm (with a 2 hour lunch) Monday through Thursday banks.
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Everyone knows the Ts of who gets bitten by a rattlesnake, right?
Tattoos
Toothless
Tequila
Testosterone
Teenagers
Texans
Tank Tops
Truck Owners
Teasers/Touchers
For those who want to be more serious:
The “T’s” of snakebite injury in the USA: fact or fiction?
Tattoos
Toothless
Tequila
Testosterone
Teenagers
Texans
Tank Tops
Truck Owners
Teasers/Touchers
For those who want to be more serious:
The “T’s” of snakebite injury in the USA: fact or fiction?
While I've never used the Venom 1 service in Miami (and, as an aside, I rotated through Mt. Sinai when the mentioned Dr. Abo was a resident and he seemed cool at the time), theoretically the service is supposed to prevent this. Instead of hospital shopping for antivenom, Miami Dade Fire is the main storehouse and they bring it to you... and are supposed to help administer it.
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Copperheads, not having a rattle, tend to inject more venom. Juveniles, being juvenile, tend to inject everything they have, because they have not yet developed the instinctual skill of estimating how much venom to use on the target. So, worst of the worst.
Yes this was well pre-pandemic, but this hospital operated at a stance of "we have no capacity" 99.5% of the time. As we ALL know, capacity is plastic and I firmly believe there are times when you should stretch your capacity. Certain other hospitals around here don't feel that way. For example, if one of our surgeons has an apparent complication / infection, and said patient is in OSH ED and WANTS to return to us... I am going to accept every time. Even if we are boarding admissions. Whats ONE more? Unless we are the only hospital around with boarders and we've lost power and the locusts have fouled up the HVAC... I'm accepting that transfer. My hospital admin has 100% supported this stance; we aren't a tertiary center so of course the demand for this service is reasonably low.
In this case I seriously couldn't find any crofab in driving distance, so I was going to pull any tricks to get this guy to the one place with it.
In probably 7-8 pre-pandemic years of trying to get patients to said hospital (we share a fair number) I had TWO successes ever:
(1) Mr. Snakebite, above
(2) A career staff physician of OTHER hospital, who came to my ED with what they thought was a minor problem but turned out to be a surgical problem, and they wanted to go home to their hospital for surgery. This was denied by their hospital xfer center repeatedly, and denied as a direct admit to their surgical service (all by RN/admin, I couldn't get an MD to speak to me). I had the cell number of their ED director, and just called him directly like WTAF mate? He was equally aghast and said to send it immediately with his name on the accepting line, and he'd deal with the idiocy.
Probably rejected 100x for those 2 wins. Which both took shenanigans.
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From what I was repeatedly told by my toxicology faculty in med school and residency (same guy), it is not correct that younger snakes will hit you with more venom. If anything, they're likely to hit you with less, being smaller. He also told me how commonly this is believed, despite being inaccurate.
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The head toxicologist where I trained in one of the most endemic rattlesnake areas in the US taught that smaller snakes were more likely to deliver venomous bites due to a lack of control versus adults. Volume can be lower, but tend to release larger percentage. Adults have greater percentage of dry bites. This tends to also be my anecdotal experience. Sounds like we need a medical ophiologist to chime in for more advanced understanding. Either way, avoid the Ts. If you don’t, then go to a hospital where @Janders is working.
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Per these guys (Snake Bite Foundation) and their referenced studies: "
Contrary to popular belief, the bite of a baby rattlesnake is almost always far less serious than the bite of a larger adult rattlesnake. The notion that baby rattlesnakes cannot control the quantity of venom injected (referred to in the field of Herpetology as “venom metering”) is a myth that has been disproven multiple times through well-designed studies. See this excellent paper by the esteemed rattlesnake venom researcher Dr. William Hayes for evidence of this fact:
Are baby rattlesnakes really more dangerous than adults? — The Asclepius Snakebite Foundation
Contrary to popular belief, the bite of a baby rattlesnake is almost always far less serious than the bite of an adult rattlesnake. The notion that baby rattlesnakes cannot control the quantity of venom injected is one of those myths that is so often repeated as fact, yet it been disproven
www.snakebitefoundation.org
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This doesn’t factor in dry bites. If a greater percentage of adult bites are dry, then you might have a better outcome compared to if bitten by a baby rattler.Per these guys (Snake Bite Foundation) and their referenced studies: "
Contrary to popular belief, the bite of a baby rattlesnake is almost always far less serious than the bite of a larger adult rattlesnake. The notion that baby rattlesnakes cannot control the quantity of venom injected (referred to in the field of Herpetology as “venom metering”) is a myth that has been disproven multiple times through well-designed studies. See this excellent paper by the esteemed rattlesnake venom researcher Dr. William Hayes for evidence of this fact:
Are baby rattlesnakes really more dangerous than adults? — The Asclepius Snakebite Foundation
Contrary to popular belief, the bite of a baby rattlesnake is almost always far less serious than the bite of an adult rattlesnake. The notion that baby rattlesnakes cannot control the quantity of venom injected is one of those myths that is so often repeated as fact, yet it been disproven
Disclaimer: I’m not an expert on this subject and haven’t scoured the literature. I just have a good amount of anecdotal experience in areas with a decent number of bites.
Current Knowledge on Snake Dry Bites
“In fact, most dry bites result from a (deliberate) decision to conserve venom. Snake behavior is age-related, and the age of a snake directly influences the likelihood of it delivering a dry bite. Adults are thought to be far more judicious than juveniles and will therefore more often deliver a dry bite if they perceive that they are under threat, which usually provides them with enough time to escape. In these cases, the dry bite is intentional and could arise in at least one of two ways: (1) The snake could assess the encounter with the target and decide not to activate the extrinsic venom gland musculature, or (2) the snake could activate the venom gland musculature at a level insufficient for venom expulsion [105]. This strategy is called venom metering, which is generally described as a decision on the part of the snake that optimizes energy-related or ecological factors [106]. On the other hand, neonates and juvenile snakes are known to not control venom metering and usually empty their glands during the bites.”
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Mine was 20+ years ago, so, shows you how research and medicine changes! I got it from Eric Lavonas.
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Yes. After they tell me a spider bit the back of their throat while they were sleeping and they swallowed it, I ask how they know this information, and they tell me that they looked it up online and that this happens very often.
These patients do not report living in insect or arachnid infested places.
I can't be the only person who's had this happen multiple times, right?
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"I'm sorry. We don't have capacity to care for this patient. Is there anything else I can help you with? No? Good luck."
A year ago we could send patients to the local level one trauma tertiary facility ED from outlying places that we couldn't keep in house.
Now we have a small collection of direct ED phone numbers that we don't widely circulate and try to cut out the transfer line whenever possible. Better hope the doc who answers (unless the person answering redirects you to the call center) remembers you from residency or doesn't care much for BS hospital protocols that don't put patients first.
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You snakey people are weird.
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Anyone have to deal with bites/stings from other varmints? Like scorpions or jellyfish? I suppose this is more in line with wilderness medicine. My Microbiology colleagues make noise every now and then of having an Medical Entomology elective course.
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Scorpions yeah. Where I practice this is probably the most common reason for pediatric intubations. Still rare, thankfully.
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I trained in AZ and worked there. Seen a Gila monster bite, centroides scorpion bites were not uncommon but very interesting. Anascorp was a thing and worked like magic.
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Its probably a medical student, and its almost certainly a streamlined version of Goldfarb's tox textbook, but yes. That point is accurate (except for the "calls earn the PCC money" element). I said something quite similar the other day.
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First a caveat: Black widows are essentially everywhere and are notoriously actually aggressive to defend themselves, so this next few points don't necessarily apply to them.
The problem with spider bites is the following:
1) its always just the IV drug abuse spider that bit them
2) spiders are generally going to run away as the first, second, and third line of defense. You really do sort of need to corner them inside a shoe or glove that you are putting on or actively harass them to get bit.
3) brown recluse, in particular, has a funny distribution where it is extremely common in some incredibly specific distributions of the US and is not not at all present in like 75% of the US landmass. So most people simply do not live where the spider lives.
4) loxosceles reclusa may be extremely geographically specific, but it has some cousin species that, confusingly, are also called recluse spiders despite being loxosceles and not reclusas. These cousin spiders are of varying relevance since some of them are essentially irrelevant to humans while others have painful bites but without the skin necrosis issues of the true reclusa. But they all look pretty much exactly like l. reclusa which makes patients adamant that they know what they were bit by, despite being in florida (non-venemous loxosceles) or california/arizona (venemous and painful but not going to cause the necrosis of concern).
I saw a speech at a toxicology conference by a (non physician I believe) who had a study where anyone who thinks they found a recluse spider could send it in, dead or alive, or send a photo of it for him to identify. This includes, and it was the majority, spiders sent in by hospitals who truly felt it was l. reclusa. There was like a 3% positive rate and a 97% "thats not a brown recluse" rate. It was that intense. Some were apparently not even spiders 🤣
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imanurse
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Never knew where the name of the condition came from. Now I do. Interesting.
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Hello everyone. Sorry for being late to the discussion. I am Dr. Marsillo's attorney and handled the defense of the snakebite case from the win at the trial court, to the loss at the Court of Appeals, to the final victory at the Supreme Court. I'd be happy to answer any questions and/or to share our briefs which detail the arguments on appeal. It's an interesting case, and perhaps a frustrating one for EM physicians who practice within the SOC and still get sued. But, there are some important lessons here and I'm happy to share if helpful.
Yes, please do. Any insights into what went right and wrong in that case, how to protect yourself, how to be an ethical expert. Any consequences for the "toxinologist"? Did the courts and jury understand the difference between a toxinologist and a board certified toxicologist. Really any insights from someone who is an expert on malpractice defense would be appreciated. Much better than the more typical EM sucks what else should I do with my life conversations.
Thank You
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We can get sued for anything, sued for less egregious stuff. I could look at most bad outcomes, find something to sue you/hospital for. The doc did nothing wrong. If doc gave Crofab, hospital could come down on him for waste of money/resources going against the hospital protocol. If pt had a bad crofab reaction, doc would be more liable b/c expert witness would come out of the woodworks pointing to the hospital protocol.
Its life of an ER doc, you get sued for dumb things.
Its life of an ER doc, you get sued for dumb things.
Yes, in reality you get sued for bad outcomes. It has nothing to do with the medicine. There is always some subtle way care could have been in enhanced in virtually every patient interaction.
I read someone here post one time that getting sued is just two lawyers fighting over your insurance policy. It has nothing to do with your care. I’m going to try my best to remember that when it’s my turn one day.
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One of the main ways to protect yourself is to document fully. Here, it was indisputable that Dr. M implemented and followed the Snakebite Treatment Guidelines, that the patient didn't meet the threshold for administration of antivenom initially, didn't meet the threshold on re-evaluation, and that when the patient did meet the threshold, the order to administer was given. The other elements of the Guidelines, such as mark and measure, stat lab work, re-eval every 30 minutes were also documented. Because the documentation was so complete, we decided to seek summary dismissal of the case and the trial court granted the motion. The basis of the motion was that there was no evidence that Dr. M was grossly negligent, and since there was no such evidence, there's nothing for the jury to decide. Another way to say that is--no reasonable jury could have returned a verdict for the plaintiff when there's no evidence on the essential elements of their gross negligence claim. Gross negligence requires evidence that (1) objectively, and from the standpoint of the physician at the time of treatment, the conduct in question involves an extreme risk of serious injury; and (2) the physician was subjectively aware of this extreme peril and was deliberately indifferent to the patient's welfare. Here, the allegation (though poorly framed by the Plaintiff) was that adhering to the Guidelines presented an extreme risk of serious injury, and that Dr. M was aware of this (fictitious) risk and was deliberately indifferent to it. There was no evidence of any of that. A number of subsidiary issues arise when you analyze those elements and the P's arguments. For instance, to meet #1, P argued that following a Hospital's guidelines was objectively a risky move that abandoned the physician's independent duty to the patient. I know--crazy talk. But, umbrage doesn't win cases. So, we argued in reply that CPGs (clinical practice guidelines) are important, improve care, and are statutorily-required by Medicare. One of the Supreme Court Justices mentioned that point in oral argument. We also supported this particular Guideline--it was a good one, well-sourced, and adopted a long-standing approach to the management of snakebites. We did that to show that following guidelines is good, common, not an extreme risk--not in general, and not in this case. On element #2 (subjective awareness and deliberate indifference), there was no evidence that Dr. M was aware of any (supposed) risk in following this g
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Oops. Picking back up. There was no evidence that Dr. M was aware of any (supposed) risk in following this Guideline, and no evidence that she was indifferent to the patient's welfare. Again, this is where documentation comes in. We were able to show multiple record entries where Dr. M was evaluating the patient, reevaluating her condition, checking labs, re-ordering labs, ordering antivenom when the parameters were met, and so on. That's not picture of someone who is "deliberately indifferent" to the patient's welfare. As to your question regarding toxicologist versus toxinologist--that never came up. The case was dismissed by the court prior to trial. But the affidavit of the P's expert was the main piece of "evidence" from the P that we had to deal with. We had to shoot that down to maintain our position of "no evidence." One of the critical errors made by the P was that their own expert, in his affidavit, advocated for the use of the Unified Treatment Algorithm for the management of snakebites, but never said what that Algorithm required, and whether it was different from the Guidelines. But, the real damage was the expert advocating for the use of the Algorithm because it directly contradicted the P's argument that following CPGs was objectively risksy and abandoned the physician's independent duty to the patient. Not according to their own expert--even he stated that following guidelines is proper. He has a different guideline, and although he doesn't tell us what it says, we know that P's own expert disagrees with the P's argument that following guidelines is objectively risky. Here is a link to our Brief on the Merits at the Supreme Court, filed on 4/19/23: Case Detail If you click on the "fully hyperlinked" version, every citation in the brief is hyperlinked to the source material--whether that be a case, a piece of evidence in the record, etc. Our Reply Brief on the Merits is also fully hyperlinked and was filed on 5/19/23. I think you will find the briefing informative. Looking forward to discussing further as you wish. /s/ Mark
That link leads to a rabbit hole of legal paperwork. Makes me glad I never wanted to be a lawyer and really sorry for the judges who have to read it all. I wonder if they really do read it all. I read the final decision. 14 pages long and 5 of those pages were spent investigating the possible meanings of the words "willful and wanton negligence" They compared potential meanings from dozens of other cases and Texas laws where those words were used in various contexts. I've had undergraduate philosophy courses that involved less circular reflection. In the end I'm not sure the judge had decided what they meant but decided whatever they meant that standard hadn't been breached. Nice to see common sense prevail but a little scary how we get to common sense.
As for Dr Abo. The final decision still referred to him as "Abo is a highly credentialed toxinologist who specializes in snake envenomation;" That seems like a stretch. As near as I can tell there is still no clinical specialty of toxinology. toxinology training There are a few organizations that it looks like anyone can join by professing their interest in envenomations. IST NAST
So, you can be interested in toxinology but it doesn't seem like you can be credentialed, highly or otherwise, in it. If he really gives antivenom to every snake bite immediately as he said, he is committing malpractice and not following the manufacturers recommendations. First person to develop anaphylaxis after being treated by him should be suing the crap out of him. I wish there were more consequences for hired guns like this. There are better ways to make a living.
As for Dr Abo. The final decision still referred to him as "Abo is a highly credentialed toxinologist who specializes in snake envenomation;" That seems like a stretch. As near as I can tell there is still no clinical specialty of toxinology. toxinology training There are a few organizations that it looks like anyone can join by professing their interest in envenomations. IST NAST
So, you can be interested in toxinology but it doesn't seem like you can be credentialed, highly or otherwise, in it. If he really gives antivenom to every snake bite immediately as he said, he is committing malpractice and not following the manufacturers recommendations. First person to develop anaphylaxis after being treated by him should be suing the crap out of him. I wish there were more consequences for hired guns like this. There are better ways to make a living.
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Call me dumb (you def wouldn't be the first), but how does "toxinology" differ from "toxicology"? Is the first one of those things created because a person didn't have the chops for the real thing?
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Apologies on the late reply. I don't get alerts, so I just randomly check in to see what y'all are up to. I would add 2 things re Abo. First, the summary judgment standard (dismissing a case before trial) requires viewing the evidence in favor of the opponent. All credibility deteriminations are also made in favor of the opponent. Although Abo's credibility and qualifications are questionable, that is not fertile ground in a summary judgment proceeding. That's why you don't see Abo's crebility questioned and the SCT giving him the benefit of the doubt. Second point--my experience has taught me that juries don't care much about experts anyway. Nonetheless, we still focus on retaining the best, and challenging the opponent's experts. But, I'm not sure that is the most important ingredient to a successful defense. Instead, it's much more important for my client to connect personally with the jury, to be liked. If the jury likes my client, they trust my client, and we win. As I mentioned previously--documentation is the foundation of a successful defense. Add in a likeable client, and I really like our chances.
