Legal Review & Commentary
Failure to diagnose: $365,000 verdict
By Mark K. Delegal, Esq., and Jan Gorrie, Esq. Pennington, Moore, Wilkinson, Bell, and Dunbar, PA, Tallahassee, FL
News: A man was hospitalized with severe cramps. Surgery was performed, but the patient died. The patient’s family brought suit against the hospital and treating physicians. Prior to trial, the attending physician was dropped as a defendant, and the hospital settled for $140,000. This amount was subtracted from the eventual $365,000 verdict against the treating gastroenterologist.
Background: On Aug. 6, 1990, the 22-year-old was admitted to a family practice teaching hospital (one with family practice residents) suffering from severe abdominal cramps and bloody diarrhea. He had been that way for two days, and there was some indication he had suffered hemolytic complications from using prophylactics to guard against sexually transmitted diseases.
The attending physician was a family practitioner who consulted with specialists in gastroenterology, surgery, nephrology, infectious disease, hematology, and neurology regarding possible diagnoses. In addition, a senior resident, who was working with the attending family practitioner, examined the patient and noted that he might be suffering from antibiotic pseudo-membranous colitis and that a sigmoidoscopy would have been one of the diagnostic tools to rule this out. The family practice resident was an employee of the hospital.
The gastroenterologist, who had been consulted, decided a sigmoidoscopy was not necessary. Shortly afterward, the patient’s cramping increased in severity. Surgery was performed Aug. 11, and his necrotic colon was removed. The patient died one day later.
The patient’s estate brought suit against the hospital as the senior resident’s employer; the attending family practitioner; and the gastroenterologist to whom the family practitioner had referred the patient. The plaintiff contended that had the sigmoidoscopy been performed, antibiotic-associated pseudo-membranous colitis would have been diagnosed and treated. Specifically, the plaintiff claimed the gastroenterologist deviated from the standard of care in recommending against the diagnostic test.
Expert witnesses disagree
Prior to trial, the family practice teaching hospital, which was part of a self-insured consortium of facilities, settled for $140,000. The plaintiff dropped the family practitioner as a defendant. Only the gastroenterologist stood trial.
At trial, the defendant claimed the sigmoidoscopy was not necessary, and the cause of death was hemolytic-uremic syndrome caused by E. coli 0157:H7 bacteria, which is incurable. Both plaintiff and defendant employed experts, who disagreed about the cause of death. However, given that the patient tested negatively for both antibiotic-associated pseudo-membranous colitis and hemolytic-uremic syndrome, the cause of death was the jury’s call. The jury awarded the patient’s family $365,000 against the gastroenterologist. It was offset by the hospital’s settlement of $140,000.
What this means to you: At first blush, one may wonder what caused the hospital to settle and, conversely, what motivated the gastroenterologist’s medical malpractice carrier to proceed to a costly trial.
"When determining whether or not to settle or try a case, at a minimum, several basic questions must be considered," states Cliff Rapp, director of risk management, south region, for ProNational in Coral Gables, FL. "First, what are the medical facts of the case? Second, was medical malpractice committed and, if so, to what degree and by whom? And, lastly, how costly will bringing the case to trial be as opposed to the jury verdict potential?
"While this is a vast oversimplification of the process — for each of the questions is actually significantly more multitiered and multifaceted — it frames the issues that each of the defendants in this case had to address before making the decision to settle or fight," he says. "Further underlying those decisions was the background knowl- edge that the base evidence in this particular instance did not lead to a clearcut answer — there was a death without the evidence to completely blame or exonerate.
"Because the autopsy results do not point to a clear good guy or bad guy with regard to whether or not malpractice has been committed, this question must be viewed in light of the other prevailing factors. As for the patient in this case, the demise of a young otherwise healthy person is never a plus for defending health care providers.
Both the range of the jury verdict and the potential for a verdict vs. the cost of a settlement must be carefully assessed by each individual defendant. This was probably the determinate factor in the differing decisions made by the hospital and the malpractice carrier," Rapp says.
The hospital's decision to settle may have been triggered by several economic issues, Rapp says. Apparently, the hospital was part of a newly created self-insurance pool and so might not have wanted to be the first with a potentially large verdict against it and cause the new entity to incur the upfront expenses of launching the requisite defense, he says. In addition, the hospital might have factored into the equation that it would be arguing against the diagnosis made by one of its employees, he adds. Even though that employee was not a specifically trained expert, the hospital would be hiring experts to contradict its own personnel.
"And, perhaps they thought that it would be perceived that somehow they were in disagreement with one of the members of their medical staff, who may, along with his practice, bring in a great deal of business to the hospital," he says.
On the other hand, according to Rapp, the physician’s medical malpractice carrier may have been more motivated to take the claim to trial because there was no conclusive evidence implicating its insured as having committed malpractice. Without conclusive evidence against the physician, the insurer was obligated to defend him, he says.
"For a case resulting in the death of such a young person, the verdict was low, and so in retrospect, each defendant probably made the best choice," he concludes.
Reference
Jeffery Svoboda, minor vs. Dr. Philip Sweeney, M.D., Gastroenterology Services Ltd., Hinsdale Hospital, Du Page County (IL) Circuit Court, Case No. 94L-560.
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