I listened to my staff, how can I be sued?

August 31, 2018
David J. Goldberg, M.D., J.D.

Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, Mt. Sinai School of Medicine, and Adjunct Professor of Law, Fordham Law School.

A burn injury and questions unasked leads to a malpractice claim.

Dr. Burn was a dermatologist working in a very busy predominantly medical dermatology office. He sees an average of 60 patients a day, is booked for weeks, and does not have a moment to breathe with his busy schedule. Although he loves the practice of dermatology, he finds himself increasingly exhausted and does not even have enough time to take a patient’s medical history.

One day, a patient presented to the office with a burn to his finger. The patient was a 30-year-old male who worked in a nearby chemical plant. The patient told the medical assistant the story of a chemical burn caused by hydrofluoric acid. The medical assistant simply relayed to Dr. Burn that the patient had a “burn” on his finger and nothing more. 

Dr. Burn grabbed the patient’s file on the way into the exam room and did a quick scan of the nurse’s notes. He did not ask any questions, diagnosed the patient as having a second  degree burn, and prescribed the use of topical antibiotics. At no time did he ask the patient about the source of the burn - he was too busy. Dr. Burn did discuss with the patient about the importance of work safety as he made a note in the patient’s fi le about the burn. He assured his patient all would be fine.

Over the next few days, the burn-induced damage worsened. Although the patient’s condition deteriorated each day, he was assured by Dr. Burn’s lack of concern. By the end of the week, his finger had nearly self-amputated. At that point, the patient saw another dermatologist, and told that physician that the burn had been caused by hydrofl uoric acid. The second  dermatologist, seeing the extent of damage, sent the burn patient to a burn center.

Unfortunately, treatment was unsuccessful, and ultimately the patient’s finger was amputated mid knuckle, making it difficult for him to work. The remaining part of the finger became very sensitive to heat and cold. The patient became increasingly angry and bitter toward Dr. Burn.

On the advice of a friend he sought the counsel of a plaintiff ’s attorney.

“If I had been treated properly by the first dermatologist, I would never have lost my fi nger,” he told the attorney. The attorney took the case, and filed a lawsuit against Dr. Burn. Dr. Burn was shocked when he received notification that he was being sued. He met with the defense attorney provided by his insurance carrier and explained the situation.

“Neither my assistant, nor the patient ever told me he was burned with acid,” said Dr. Burn.  “Is it my fault that the patient did not give me full details as to what was wrong?”

The attorney agreed that he did not believe that Dr. Burn did anything wrong, but he warned him that juries are notoriously unpredictable. Going to trial was always a risk.

“I don’t care,” said Dr. Burn. “I will take the risk. I did not do anything wrong." After months of discovery and paperwork, the case finally went to trial.

At trial, the plaintiff ’s attorney argued that Dr. Burn was negligent in his treatment of the patient. Just as a doctor wouldn’t rely on a patient’s self diagnosis when determining a treatment, a doctor should also not rely on his staff ’s lack of a description as to the source of the burn. It is the doctor’s responsibility to ask such questions.

The patient testified that although he hadn’t given the physician the information as to the cause of the burn, he was never asked by the physician; and he had given the information to Dr. Burn’s medical assistant. The jury returned after a brief time in deliberation with a verdict against Dr. Burn.

In reality, Dr. Burn did not provide the correct treatment for his patient. He relied on his staff  for information and never asked the patient the correct questions.

In a case such as this, the onus was on Dr. Burn to ask about the cause. It is not the plaintiff  patient’s responsibility to repeat his conversation twice. Similarly, Dr. Burn cannot push the onus onto his staff  member for not telling him all the details. Lastly, Dr. Burn cannot say he was so busy that he did not have time to ask the right questions. He was liable and the jury agreed.

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