News: A man underwent surgery to correct a clubfoot. He received postoperative care at the hospital for approximately two weeks. Initially, there were no signs of infection. However, when the patient was transferred to a different hospital, he was diagnosed with gangrene in his left foot, which required amputation.
The patient filed a malpractice suit against the hospital and multiple physicians. The defendant hospital filed a motion for dismissal, arguing the patient was constantly instructed to keep his leg elevated but refused to comply. The trial court denied the dismissal, and an appellate court upheld the decision.
Background: On May 1, 2012, a 51-year-old man underwent a 6.5-hour long surgery to correct a clubfoot. The patient remained at the hospital for postoperative care and pain management. According to the hospital, the patient showed no sign of infection two weeks after the surgery. The patient’s care providers repeatedly admonished the patient to keep his left foot elevated. However, the patient claimed a nurse instructed him to elevate his foot and then hang it in a dependent position. The defendants claimed despite their constant instructions, the patient continuously refused to comply and keep his foot elevated. Medical records submitted by the defendant hospital confirmed the patient was repeatedly admonished to keep his foot elevated.
On May 16, 2012, the patient was transferred to a different hospital, where he was diagnosed with substantial swelling, infection, and gangrene. As a result of the gangrene, the patient’s leg was amputated from the knee down. The patient filed a malpractice suit against the hospital and numerous individual physicians, claiming the defendants failed to timely and properly manage and treat his ischemic injury following the surgery, which led to the infection and amputation.
The defendants denied liability and claimed the physicians all performed their duties without flaw or error. Specifically, the defendant hospital claimed it was the patient’s fault for not keeping his foot elevated as instructed. In response, the patient claimed at least one nurse immediately after the surgery told him to keep his foot in a “dependent position.”
The hospital filed a motion seeking dismissal from the action, arguing the patient’s own fault and refusal to abide by instructions caused the infection and amputation. The defendant hospital relied on the medical records that noted the patient was repeatedly admonished to elevate his foot. Additionally, the hospital claimed one of the physicians was an independent contractor and the hospital could not be held liable for his alleged conduct.
The trial court rejected the hospital’s arguments, finding the medical records were insufficient to eliminate issues related to the earlier postoperative instructions that contradicted the written records. Furthermore, the hospital’s evidence failed to demonstrate the individual physician was an independent contractor because the hospital assigned the physician to render a vascular surgical consultation for the patient. The hospital appealed the denial, but the appellate court affirmed.
What this means to you: In this case, evidentiary concerns presented material issues for the defendant hospital, which was disputing liability early in the litigation. Litigation inherently relies on evidence, whether oral testimony or written records, analyzed and scrutinized years or even decades after the underlying events took place. While memory is subjective and faulty, written records are far more objective and concrete. The importance of keeping thorough written records cannot be underestimated, both in terms of providing accurate and sufficient care to patients and for the purpose of defending against malpractice actions.
Here, the underlying events took place in 2012. Ten years later, the case has not proceeded to trial. Such a timeline is not uncommon; the wheels of justice turn slowly, and judicial systems are often backlogged, underfunded, and unable to handle the sheer volume of cases before them. This has important practical ramifications for care providers because it is difficult for anyone to recall what happened to one patient 10 years ago when the provider has likely diagnosed, treated, and dealt with thousands of patients in the interim. It is true some patients and cases are more memorable than others, but that might not ward off the unreliability of memory.
These reasons are precisely why keeping thorough, accurate medical records is of critical importance. A medical record, particularly an electronic record, is far easier to maintain and review years after the fact with less subjectivity involved. In this case, the medical records were abundantly helpful for the defendants in demonstrating the patient was repeatedly admonished to keep his foot elevated, yet the patient refused. The veracity and content of these records were not disputed, and regardless of the current procedural status and hiccup in the defendant’s efforts to dismiss the case, those records will be critical in the future of this litigation.
Another related lesson from this case is the importance of consistency. While the medical records were clear in their admonishments to the patient, the patient claimed he received different instructions to elevate his foot and hang it in a dependent position. The patient claimed a nurse provided this instruction. Although there was no record of such an instruction, the purported oral instruction was problematic for the early defense and attempted dismissal. At that stage of the litigation, the court was required to review evidence favorable to the patient since it did not yet have the benefit of a jury to weigh credibility.
Accordingly, with the conflicting oral instruction and written records, the patient maintained the litigation. This issue goes directly to both care and malpractice aspects, as providers should ensure consistency in issuing instructions. Patients who receive conflicting instructions are likely to be confused and may suffer harm if following an erroneous set of instructions.
Several issues are left unaddressed. The first is the immediate postoperative orders to staff and instructions to the patient should clearly explain the surgeon’s recommendations for positioning the operative site. This is critical information care providers must know. If the instructions were to dangle, it would have been ordered. Just as an order to keep the area elevated should have been evident, specific care requirements must be written as physician orders. The second concern is how hospital staff manage a patient’s refusal to comply with the physician’s medical plan of care. Just documenting the refusal is insufficient. Who was notified about it? What did that individual do to ensure compliance from the patient? What other modalities were implemented to assist the patient? Simply writing a note of refusal and attending to other tasks only contributes to the patient’s perception that it is not important to follow the instructions but also validates the behavior. When a patient refuses to follow prescribed orders, it is an “all hands on deck” situation. Finding a solution is the standard of care.
Finally, this case dealt with the doctrine known as respondeat superior, whereby an employer, typically a hospital, may be held liable for the actions or negligence of its employee. Who constitutes an employee often is a hotly debated subject, with specific formulations and elements that can vary by jurisdiction. In this case, the court noted sufficient evidence to confirm this was not a private, independent physician for whose acts the hospital could not be liable, largely because the hospital assigned the physician to render a consultation for the patient’s postoperative care and treatment. Whether a physician is an employee or independent contractor has ramifications that extend into multiple areas, including malpractice liability and employment law. Providers should be cautious to consult with counsel concerning the classification of individuals.
REFERENCE
- Decided July 20, 2022, in the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, Case Number 2019-06998.
In this case, evidentiary concerns presented material issues for the defendant hospital, which was disputing liability early in the litigation.
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