Special Report: Of Tourniquets and Arbitrations
June 1, 2009 7 minutes read
SPECIAL REPORT
Of Tourniquets and Arbitrations
By Jonathan D. Lawrence, MD, JD, FACEP, Emergency Physician, St. Mary Medical Center, Long Beach, CA; Assistant Professor of Medicine, Department of Emergency Medicine, Harbor/UCLA Medical Center, Torrance, CA.
A recently arbitrated case presents a starting off point for a discussion regarding a commonly applied dressing and a frequently used but often misunderstood method of resolving medial malpractice disputes.
On November 11, 2006 a 10-year-old girl accidentally closed a car door onto her left (non-dominant) small finger. Her mother brought her to the emergency department, where she was seen by a nurse practitioner supervised by the attending emergency physician. On exam, a superficial laceration was noted at the distal inter-phalangeal joint. Motor, sensory, and vascular functions were normal. An x-ray was obtained that showed no fracture. The wound was dressed with some Neosporin® and a tube gauze. Her mother was instructed to return in three days for a wound check, which she did. The mother had removed the dressing prior to the recheck because the child complained of pain to the digit. On exam, the distal finger appeared necrotic and the child was referred to hand surgery. The distal phalanx was eventually amputated after it demarcated. The mother complained that the tube gauze was applied too tightly to her daughter's finger, causing the loss of part of her finger, and she brought legal action against her health plan. As a condition for joining this health plan, the mother had agreed that all contentions of medical malpractice be adjudicated by binding arbitration. Binding arbitration was held and the arbitrator found for the patient, awarding her monetary damages.
The Bandage
As often as tube gauze is applied to digits, there are only a handful of case reports that claim its use resulted in necrosis of a finger.1-5 This must mean that complications of its use occur extraordinarily rarely. The bandaging has been available without prescription for decades at any pharmacy. It has always been considered a useful adjunct to wound care as it effectively and securely covers wounds, protects them, and at the same time, in the case of digits, immobilizes the affected part. As a downside, the finger, including its tip, is completely covered, precluding inspection. As far as I know, there has never been a product liability case brought by the plaintiff's bar against any manufacturer for producing an unreasonably dangerous product, or defective instructions or warnings on its use. (The basic elements of a product liability case)
The case reports cited try to explain these poor outcomes by a number of theories, none of which have been proven. One theory is misapplication of the bandage, creating a tourniquet on the digit, thus cutting off blood flow leading to ischemia and necrosis. The main problem with this theory is that ischemic digits, as with ischemia anywhere, are likely to be extremely painful, causing either the patient to either seek immediate medical attention or remove the bandage, or both. Also, it is extremely difficult to misapply the tubular gauze in a way that causes a tourniquet. Another theory is the "Chinese Finger Trap" theory. Since these tube gauze dressings are woven and stretchable, the theory goes, a misapplied dressing with any traction will apply pressure forces on the digit beyond arterial pressure and cause ischemia. Again, the primary problem is the lack of reported cases, either medical or legal, compared to the millions of applications of the product. Most of the applications are not done in medical settings, thus the number of times the gauze is stretched during its application must be countless, and one would expect more frequent problems.
A far more likely explanation is that there is something inherently wrong with the vasculature of these reported cases. In of one of the reported cases, the victim was a 74-year-old woman with hypertension, diabetes, hyperlipidemia, and a history of smoking, all of which put her at increased risk of distal ischemia. The 10-year-old in the present case had traumatized her finger in a car door, with a likelihood of arterial injury despite a benign outward appearance of the digit. It would be hard to prove that the dressing and not the original injury caused the eventual ischemia and amputation.
The take-home message of these rare cases is that practitioners should continue to use this useful dressing under appropriate circumstances, but patients should be informed on discharge of the circumstances upon which they should immediately return. Primarily, any increase in pain necessitates removal of the bandage and recheck of the digit. Patients possibly at higher risk of complications include children, the elderly, "special" patients such as those with Reynaud's, and those in whom long-acting digital anesthesia has been used.
The Arbitration
Arbitration, in the legal sense, is a dispute settling mechanism that is more formal than mediation (where a mediator guides the parties to agree on a mutually acceptable solution to their conflict) and less formal than a trial. An arbitrator (or panel of arbitrators) hears the facts from both sides (termed "petitioner" and "respondent" instead of "plaintiff" and "defendant," respectively) and issues a ruling on the merits of the case.
Arbitration is used primarily under two circumstances in medical malpractice cases.
The first is court-ordered. These are usually statutory in nature and vary from state to state. When the amount of damages claimed or estimated is under a certain specified amount, the court can order the parties into arbitration to see if the dispute can be settled without using the court's limited resources for a full trial. These are uncommon in medical malpractice since the damages asked, for most part, often exceed the statutory limits. Arbitration of this sort is not binding. Either party, if dissatisfied with the result, can ask the court for a trial de novo, meaning a court trial as though the arbitration had never occurred. The party that asks for the trial, however, is penalized for a number of trial-related costs if they do not fare better in the trial than they did at arbitration.
Binding arbitration is the second arbitration form and far more common in the medical malpractice scenario. Usually, a patient will sign a binding arbitration agreement with a health care provider or health plan as a condition of being accepted by the plan. Under the agreement, all disputes arising out of the provision of health are sent to arbitration and the results (with few exceptions) are binding on the parties. These agreements to arbitrate are considered contracts and are subject to all the laws regarding the formation of contracts. Thus, they are legal unless, for example, one of the parties has been induced into the contract by means of fraud.
The following rules applying to binding arbitration come from California statute; other states may vary. The arbitration is usually held before a neutral arbitrator who hears the evidence presented by both parties, including expert witnesses, just as in a trial. Proof of lack of neutrality is one of the very few grounds for appealing and setting aside the arbitrator's findings. The rules of evidence are relaxed, so that evidence that might be barred in trial (such as hearsay) can be admitted by the arbitrator. The arbitrator has great latitude in allowing or disallowing evidence. Witnesses are not required to testify under oath unless requested by one of the parties. Arbitration hearings are usually not recorded, meaning there is no written record of the statements of witnesses. Once the arbitrator makes a ruling, the decision is final barring a very few specified circumstances where the arbitrator's conduct warrants setting aside the decision.
In the case of the 10-year-old presented above, the neutral arbitrator heard evidence from the patient, the health care providers, and the expert witnesses. The petitioner's case relied on expert testimony that alleged the tube gauze must have been applied too tightly, otherwise the patient would not have lost her finger. Respondent, via evidence from a hand surgeon, answered that, with evidence that the finger was crushed, petitioner had not met her burden of proof that the bandage and not the injury itself caused the ischemia. Astonishingly, the arbitrator found for the petitioner, reasoning that the health care providers didn't provide enough evidence to allow him to account for the ischemia from the original injury. Damages were awarded for pain and suffering and future prosthetics (for the distal phalanx of the non-dominant 5th finger).
Summary
Arbitration offers both sides to a dispute the opportunity to resolve the matter more quickly and less expensively than a full trial in court. Such advantages must be weighed against the more informal nature of arbitrations, including the possibility that an arbitrator may be as capricious as a jury of 12 lay persons.
References
1. Miller TA, Haftel AJ. Iatrogenic digital ischemia. West J Med 1975;122:183-184.
2. Neal JM. Iatrogenic digital ischemia. Am J Emerg Med 1986;15:382-383.
3. Giadoni MB, Vinson RP, Grabski WJ. Ischemic complications of tubular gauze dressings. Dermatol Surg 1995;21: 716-718.
4. Hart RG, Wolff TW, O'Neill WL. Preventing tourniquet effect when dressing finger wounds in children. Am J Emerg Med 2004;22:594-595.
5. Norris RL, Gilbert GH. Digital necrosis necessitating amputation after tube gauze dressing application in the ED. Am J Emerg Med 2006;24:618-621.
A recently arbitrated case presents a starting off point for a discussion regarding a commonly applied dressing and a frequently used but often misunderstood method of resolving medial malpractice disputes.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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