Strange things often happen when it comes to medical malpractice claims. From missed diagnoses to missing sponges, you may think you’ve heard it all before. But there have been some shocking twists on medical liability. Here’s to hoping that we can learn some hard lessons by proxy.
Patient Not Warned to Avoid Physical Exertion; Dies During Threesome
A Lawrenceville, Georgia, jury awarded $3 million to the estate of William Martinez. Mr. Martinez was 31 years old in 2009 when he entered his cardiologist’s office. There he complained of chest pain that radiated into his arm.
His cardiologist found that Mr. Martinez was at “high risk” of having coronary disease and ordered a nuclear test to be performed. The test was scheduled to take place 8 days after Mr. Martinez’ initial appointment with his cardiologist. The cardiologist alleges that Mr. Martinez was instructed to avoid exertional activity until after the nuclear stress test was completed. The family of Mr. Martinez argues that no such instruction was given.
The day before his nuclear stress test, Mr. Martinez apparently engaged in some “exertional activity.” In fact, Mr. Martinez engaged in a threesome with a woman who was not his wife as well as a male friend. During this encounter, Mr. Martinez died.
His family members then proceeded to bring a medical malpractice claim against his cardiologist and the cardiologist’s practice. Presumably, the family’s thought was if William Martinez had been properly instructed to avoid high-risk activities, he certainly would have complied.
The family initially brought a claim for $5 million dollars, but this claim was reduced by a finding that Martinez was 40% liable for his own death. Note the mathematics: One would assume that engaging in a 3-way activity would make him one-third liable for his own damages but apparently, there were facts not known to me that increased his liability to 40%.
In August 2011, the New England Journal of Medicine reported that cardiologists are the physicians most frequently named in medical malpractice actions. In fact, cardiologists in the United States have a roughly 1 in 5 chance of being sued in any given year. Based on the Martinez case, you can see how these statistics can actually be true. The cardiologist’s attorney indicates that an appeal will be taken. For now, we will all have to wait to see how the appellant court system of Georgia reacts to this case.
Lesson learned: Document every instruction.
Who Would Expect This Lawsuit? “What We Have Here Is a Failure to Communicate”
A California man sought medical leave from his employer due to severe depression. In order to qualify for the medical leave, his psychiatrist needed to send a letter to the patient’s company confirming his condition.
Although the psychiatrist faxed the correspondence, the employer claimed it was never received. The patient was terminated. In addition to the depression, the termination led to 27 months of unemployment.
The patient sued his employer for wrongful termination. During this litigation, the psychiatrist testified, saying she had not confirmed that the fax transmissions to the employer had been received. The case settled for an undisclosed amount. The patient did not stop there. He next filed a case against the psychiatrist, claiming she was negligent in failing to ensure that his employer received the correspondence. The psychiatrist claimed to have sent multiple faxes to both the human resources department of the company and to the company providing the patient’s disability insurance. She also alleged the employer had falsely claimed not to have received the fax, maintaining that the employer wanted to terminate the plaintiff due to his repeated medical leaves and harassment allegations.
The jury found the psychiatrist 88% at fault and the plaintiff 12% at fault. A $1 million posttrial settlement was reached. Lesson learned: Always keep a record of every fax confirmation.
Family Alleges Woman Froze to Death After Being Put in Morgue
Maria De Jesus Arroyo arrived at White Memorial Medical Center in California by ambulance in July of 2010 and received treatment for a heart attack. Dr. John J. Plosay, III, pronounced her dead shortly after her arrival. Guadalupe Arroyo, Maria’s husband, and 8 family members viewed Maria’s body before she was taken to the morgue.
When a funeral home representative arrived to pick up the remains, he found the body face-down with a broken nose, facial lacerations, and contusions. Funeral home officials notified the family of the body’s condition. The family then filed suit against White Memorial Medical Center for the mutilation of Ms. Arroyo’s remains.
An expert in the case determined that the body may not have been mutilated after death but that Ms. Arroyo had frozen to death in the hospital’s morgue after being prematurely pronounced dead. The expert claims that the cold temperature of the freezer revived Ms. Arroyo, and she damaged her face and turned her body around while trying to escape the “frozen tomb.” Sadly, this case reads like a modern day Edgar Allan Poe story. The trial court dismissed the mutilation action without prejudice prior to trial.
In May 2012, Arroyo’s family refiled their complaint, bringing new claims of medical negligence, wrongful death, and negligence against Plosay, White Memorial Medical Center, and 10 unidentified defendants. Arroyo’s family alleged a breach of the applicable standard of medical care by prematurely declaring Ms. Arroyo’s death and failing to realize the error before she was placed in the morgue.
The complaint states that Plosay and White Memorial Medical Center are liable for Ms. Arroyo’s wrongful death and the pain, mental anguish, and extreme fear that she suffered prior to her death. The family alternatively alleges that the hospital and its employees negligently placed Maria’s body face down in the morgue and damaged or lacerated her nose and other parts of her head.
Lesson learned: Check, double check, and don’t rush to a premature decision.
Other Potential Liability Risks
A Different Type of Phone Tag
In New York in 2011, a woman went to her local community emergency department with stroke-like symptoms. The physician assistant contacted a family practitioner, who then contacted a neurologist on call at another, larger hospital. The neurologist advised against administering a tissue plasminogen activator (tPA). The woman suffered a second, debilitating stroke the following day.
Did the woman next sue the neurologist? No. The woman filed a malpractice action against the hospital where she was treated, alleging that the hospital was liable for the on-call neurologist’s allegedly negligent advice regarding tPA. A New York trial court ruled that Community Memorial Hospital may be held vicariously liable for the negligence of a neurologist who did not practice at the hospital but was consulted about an emergency department patient’s care by an on-call physician.
The trial court denied the hospital’s motion that it was not subject to liability for the neurologist’s conduct. The appellate court affirmed that the neurologist was acting as the hospital’s ostensible agent because the patient believed that she was being treated by a doctor acting on the hospital’s behalf.
Lesson learned: Hospitals need to approve the physicians giving telephone consultations Liable for Patient’s Gambling Addiction? You Bet
Liable for Patient’s Gambling Addiction? You BetIn Wisconsin, patient Kenneth L.
In Wisconsin, patient Kenneth L. Shampo went to see his physician, Dr. Shiloh J. Ramos, for a treatment of restless leg syndrome. Dr. Ramos, a Department of Veterans Affairs clinic physician, prescribed increasing dosages of pramipexole. Pramipexole is known to have a side effect of causing compulsive gambling in some patients.
Shampo claims to be one of those unlucky patients to be afflicted by the gambling side effect. Due to gambling, Shampo lost his home and filed for bankruptcy. Shampo claims Dr. Ramos failed to warn him of the side effects of the medication. Shampo also alleges that the United States is liable for $3 million in damages under the Federal Tort Claims Act.
Lesson learned: Provide patients with information about all possible side effects regardless of the odds.
Knowledge Is Power
These cases highlight the importance of fully documenting communications with patients and the importance of having and following set procedures. If you can identify potential liability risks, you can usually avoid them. With a little planning and the creation of a few simple procedures, you increase your odds of avoiding litigation.
© 2013 Michael Sacopulos
Cite this article: 5 Unexpected Ways You Could Get Sued. Medscape. Dec 30, 2013.