Patient's estate sues after ignoring M.D.'s advice

November 1, 2005

Dr. Dave saw a patient with a biopsy-proven atypical nevus that required further excision.

The patient was very anxious and refused to undergo the procedure without undergoing sedation.

According to the patient, she always needed to be "snowed" when she saw her dental hygienist for a teeth cleaning. Dr. Dave had no training in IV-conscious sedation, but assured his patient that he could give her enough oral medications to relieve her anxiety, discomfort and pain. She would remember nothing about the procedure. He gave her the appropriate prescriptions with the caveat that she was not to drive for four hours after the procedure. She signed a form stating that she was aware that she could not drive after the procedure. The patient was once again reminded of this requirement at the time she scheduled her appointment. Although the patient said she would drive to the doctor's office on the day of the procedure, she provided Dr. Dave's staff with the name of the person who would take her home after the procedure.

The patient underwent her excision without any difficulty.

However, at the time of her discharge from the office, her driver friend was unavailable. The patient was told by Dr. Dave's staff to wait at his office for the next several hours, or until someone was able to drive her home. When it became apparent that the patient was going to leave without assistance, Dr. Dave asked that she sign a form indicating that she understood that she was not to drive and was leaving against medical advice. She signed the form, left the office and 30 minutes later was involved in a severe car accident. The patient subsequently died from injuries sustained in the car accident.

Much to Dr. Dave's chagrin, his deceased patient's estate sued him for allowing her to leave the office when she was still under the effects of her medications. Does the estate have a case?

'Allowed' to leave

The Arkansas Supreme Court recently looked at a similar fact pattern. In that case, the plaintiff underwent colonoscopy under sedation, signed forms that she was not to drive after the procedure, left the medical office against medical advice, was injured in a car accident and subsequently died.

Her estate alleged that the physician, in "allowing" her to leave while still under the effects of sedation failed to exercise the degree of skill required by members of the medical profession and that this failure constituted medical malpractice. The lower trial court agreed that the physician had committed negligence in letting his patient leave. The doctor appealed (and) the Arkansas Supreme Court disagreed with the lower court. The Arkansas Supreme Court looked at the plaintiff's three arguments. They were: 1) that the doctor should not have sedated the patient without first meeting the driver; 2) the patient should not have been discharged from the recovery room until the driver was present; and 3) the physician should not have allowed a sedated patient to leave the office.

The Arkansas Supreme Court noted that in that case, the procedure was conducted only because the patient had told the physician staff that his friend would pick him up after the procedure. It was not until after the procedure that any of the physician's employees learned that his friend would not pick him up and drive him home. It was only after the procedure that the staff learned that the patient was driving himself.

The Court ruled that physicians and nurses must be allowed to rely on the information given to them by their patients, and that, in fact, patients themselves must assume at least some responsibility for their own care. It was too onerous a burden, according to the Court, to require the physician and/or staff to assume that a patient is providing incorrect information to them.

Reasonable expectations

Similarly, Dr. Dave did what would be reasonably expected from a physician.