By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, are Risk Services
Former Director of Risk Management Services
(2004-2013)
California Hospital Medical Center
Los Angeles
Morgan Lynch, 2018 JD Candidate
Pepperdine University School of Law
Malibu, CA
News: In August 2013, a woman presented to a hospital for treatment of her fingernails and toenails. She was prescribed medication for nail fungus and was instructed to take it every day for 30 days, with three refills. The patient refilled the prescription and took it over four months.
The next month, the patient returned to the hospital for unrelated treatment, and testing showed ordinary liver function. Over the next three months, the patient visited the hospital three times complaining of various ailments, culminating in admission to the hospital for acute liver failure. The patient died from complications of liver failure.
The estate — the patient’s surviving family — sued the hospital and medical professionals. The three-day trial concluded with a $4.7 million verdict for pain and suffering after a 1.5-hour jury deliberation.
Background: On Aug. 19, 2013, a woman presented at a hospital and was treated by a doctor of osteopathic medicine (DO) for problems involving her fingernails and toenails. The DO diagnosed the patient with onychomycosis (nail fungus). She was then prescribed 200 mg of ketoconazole to be taken daily for 30 days, with three refills. The physician neglected to obtain a baseline liver function/liver test before the patient began the prescription.
The patient used the medication for more than four months, and returned to the medical facility for swelling in her wrist and thumb on Sept. 13, 2013. She was seen by a nurse practitioner, who performed lab tests. It was determined that the patient’s liver function/enzyme tests were in the normal range at that time.
Two months later, the patient returned to the primary care clinic reporting vaginal issues and constipation. She returned on Dec. 24, 2013, complaining of a cough, runny nose, and ear pain for two to three days; coughing up yellow mucus that day; dark urine for three days; and significant loss of appetite. A urinalysis was performed, but liver function/enzyme tests were not ordered or obtained from the patient at this visit. The patient was prescribed the antibiotic ciprofloxacin.
On Jan. 2, 2014, the patient returned because her family informed her that she looked yellow, she felt very tired for over a week, and eating and drinking caused her stomach pain. Clinic staff noted the patient was “very jaundiced” with right upper quadrant pain and tenderness. The assessment read: (1) right upper quadrant pain and (2) gross jaundice. The patient’s lab test results showed profoundly abnormal liver function. An abdominal ultrasound performed that day also was abnormal. She was admitted to the hospital on Jan. 3, 2014, because of her acute liver failure, but unfortunately died on Jan. 24 from liver failure and related complications.
The estate, represented by the patient’s surviving adult children and husband, sued the physician, nurse practitioner, the DO’s practice, and the hospital for wrongful death and medical malpractice. Interestingly, the hospital stipulated to liability prior to the outset of trial after initially denying liability. Because the defense already conceded liability as well as the cost of the funeral expenses, it only contested the damages to which the plaintiff was entitled. At trial, the plaintiffs elicited testimony by the surviving husband regarding his loving, deceased wife in her capacity as a mother of seven, grandmother to 17, and great-grandmother to one. The plaintiff’s counsel contended that the DO failed to monitor the patient’s use of ketoconazole after she returned to the clinic several times. The attorney further alleged that “the doctors only obtained a single liver function test over the more than 19-week period [the patient] took the medication.”
After the three-day trial, the jury deliberated for 90 minutes. The jury unanimously delivered a verdict in favor of the estate for $4.7 million. The hospital was 100% liable through respondeat superior and other theories of agency-principal law applicable in the jurisdiction where the case was tried.
What this means to you: This case illustrates the consequences of failing to monitor a patient’s use of hepatotoxic drugs. Medical professionals should ensure they understand the side effects of the medications they prescribe, and communicate those side effects to patients. This is, of course, the basic logic behind informed consent. While it is not necessary for patients to consent in writing before taking the prescribed medication, the patient here should have been informed that the medication can cause liver damage, what symptoms to be aware of, and to report symptoms to the physician immediately should they occur. Additionally, if the patient was taking any other medication known to affect liver function, the oral antifungal medication should not have been offered as a treatment option.
The patient’s symptoms in this case changed significantly toward the end of her life. It does not appear that the nurse practitioner or DO considered the relationship between the medication and the new symptoms, evidenced by the failure to obtain liver testing. In any case, medical professionals must keep up with patients to ensure the patients are tolerating the medication.
It is well-known in the medical community that antifungal medications can cause skin rashes and liver damage. The standard procedure for antifungal medications always should include a baseline test for basic liver function. Once that baseline is established, physicians must order follow-up blood testing throughout the course of the medication. This patient lost her life because the physician failed to manage his patient and failed to conduct proper testing each time she returned to the clinic. Medical facilities should conduct internal audits to ensure physicians are properly managing their patients’ medications and following other hospital procedures.
In consultations, physicians and nurse practitioners need to be very thorough with patient interviews to ensure that all of their symptoms are reported and considered. This will provide the physician with a full profile of the patient and his or her symptoms, allowing the best diagnoses possible. Some patients may be reluctant to acknowledge or have difficulty explaining their symptoms, so medical professionals must be diligent in their interviewing process.
Regarding nail fungus, treatment can be more effective when different treatment methods are combined. Some potential treatment options include oral antifungal drugs such as those prescribed in this case, medicated nail polish, medicated nail creams, and possibly even laser- or light-based therapies. If the physician here had instructed the patient to use some of these other remedies, she may not have stayed on the medication as long, and may not have sustained such a high degree of liver damage.
This case also illustrates that hospitals should work with knowledgeable counsel in their jurisdictions and consider whether and how to insulate themselves from liability arising out of negligence by medical professionals. Laws vary from state to state, and it may be worth exploring whether liability exposure can be reduced through categorizing workers as independent contractors rather than employees. Shifting liability to the physicians and nurses can prevent accidents from happening since their insurance premiums are on the line, rather than the hospital’s. If recategorizing employees is not an option, another way to reduce respondeat superior liability is to argue that the actions of medical professionals are not within the scope of their employment when they injure patients or stray from the standard of care. This argument makes sense where procedures are in place and physicians fail to follow them. The scope of the employment may end if the medical professional strays too far from established procedures.
REFERENCE
- Decided on June 9, 2016, in U.S. District Court, N.D. Georgia, Case No. 1:14CV03319.
Failure to monitor a patient's medication use resulted in fatal liver damage.
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