OUTCOME
A defense verdict was returned for the PA. A jury awarded a $13 million verdict against Dr. W., which included $10 million in punitive damages. The court later reduced the amount to the statutory cap of $1.25 million in compensatory and $9 million in punitive damages.
Related to this case, Dr. W.’s medical malpractice insurer filed a claim in federal court, arguing that the doctor’s flight from the country voided his coverage. That suit is still pending.
COMMENT
This case begins with a cough and ends with an otolaryngologist holed up in a tent on a mountain in Italy. Where to begin?
First, beware of bounce-back patients. This patient saw the PA several times in four months and received diagnoses of bronchitis, tobacco use, seasonal allergies, and chronic sinusitis. Sore throat and hemoptysis in a patient with a 25-year smoking history should have provided clues that the source of the bleeding was not the sinuses, but somewhere else in the respiratory tract. The patient presented with substantially similar symptoms over a relatively short course.
Many malpractice cases begin with a patient who repeats the same complaint and end with a missed diagnosis. In sum, in the setting of tobacco use, consider oropharyngeal cancer of all types. Always reconsider a prior diagnosis if it feels forced, and when a patient returns several times with the same complaint (without an established diagnosis), step back, ask if something is being missed, and consider consulting a colleague for some “fresh eyes” on the case. Here, despite the patient’s continual visits for the same problem, the jury was not persuaded that the PA breached the standard of care.
Second, nefarious clinicians guarantee litigation and punitive damages. If you share a patient with these clinicians, eventually you will be involved in litigation. Here, the otolaryngologist’s actions were so repugnant that the jury felt compelled to award punitive damages. The PA was caught up in a suit that may not have been filed or maintained without the extreme malfeasance of one of the other treating clinicians.
Generally, after a malpractice case is filed, defense counsel will determine if it is possible to maintain a unified defense, without infighting between clinicians. Sometimes this is possible and other times it is not. Here, the otolaryngologist apparently performed seven sinus polyp surgeries from October to December, barely examined the patient, and fabricated test results—all while seeing up to 99 additional patients a day.
The PA’s attorney did her best to distance her client from the otolaryngologist’s actions, and she was successful in convincing the jury that her client’s conduct did not breach the standard of care. She was no doubt aided by the PA’s genuine concern for the patient and his efforts to address her problem.
If your practice environment includes or collaborates with a questionable clinician, it is only a matter of time before you will be named in a suit along with that clinician. Do your best to protect the patient and distinguish your actions from obvious wrongdoing. In cases of patently obvious moral wrongdoing, report the offending clinician to the state medical board.
Third, do not let the mere presence of a lawsuit ruin your life. Having worked as a PA first and a defense attorney later, I shared the litigation worries that all practicing clinicians have. After transitioning into the world of medical malpractice defense, I saw that suits are filed, cases will be decided, and medicine is relatively high risk (particularly in the areas of obstetrics, anesthesia, surgery, and emergency medicine). Some claims are valid; others are not.
If you are sued, let your attorney help you with the case; don’t let it rob you of all your life’s joys and successes, and don’t let it paralyze your ability to practice. Just being named in a suit does not equate to liability: You may be cleared in the end. —DML