A simple complication, a massive lawsuit

June 2, 2016

Legal arguments can be based on foreseeable complications, even when physicians are safety conscious.

Dr. Derm has a very large dermatology practice where he practices both medical and cosmetic dermatology. In addition, Dr. Derm is actively involved in many clinical research studies. His patients love to become research subjects because 1) they are treated at no charge and 2) they receive compensation for their travel and expenses getting to his office. Many studies require that blood be drawn as part of the research protocol. One such 32 year old investment banker subject had her bloods drawn at the end of a particular FDA study visit. After the bloods were drawn by his medical assistant, the subject was told, by the medical assistant, to get dressed and schedule her next appointment. Fifteen minutes later, Dr. Derm walked in to the exam room and found the patient on the floor. She had experienced a vasovagal reaction. Dr. Derm was able to get her on the table and she seemed to recover. He sent her home.

Next: Seizure leads to death

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Seizure leads to death

That night, the patient had a seizure and was taken to the emergency room. She was found to have a large subdual hematoma from the fall after the vasovagal episode. Unfortunately, she died 3 days later.

The deceased patient’s family (husband and 2 children) brought a $20 million dollar lawsuit against Dr. Derm and his medical assistant. He is beside himself.  How could this happen from a simple fainting episode? Even worse in his mind, he was treating her for free. Shouldn’t he be protected while undertaking an FDA trial?

We often worry about complications from our various evaluations and treatments. Did I miss a melanoma on a full body exam? Will my patient be scarred from a laser procedure? Will my patient have an untoward reaction to an oral medication? These are all serious complications and may lead to the filing of a lawsuit. However, even the simplest of procedures can be fraught with hazards that are easily prevented and that may lead to a lawsuit.

Next: Is there legal precedent?

 

Legal precedent

Such an issue has precedent. In Nelson v. Emory Healthcare, a 55 year old, Chris Nelson, had blood drawn as part of a wellness exam. He was seated upright on an exam table. Nelson lost consciousness immediately following the phlebotomy, fell off the table, and was found on the floor, prone, bleeding from his head. It’s not clear from the report whether he fell during the blood draw, or after the venipuncture (when he might have been left alone). A physician entered the room and performed a basic neurological exam. Because of concern about a cervical spine injury, the physician implemented cervical spine immobilization. Thankfully, the patient did regain consciousness. However, once the patient regained consciousness, he complained of tingling in his arms and legs. He was transported to a local hospital where he was diagnosed with a broken neck and spinal cord injury.

It’s unclear from the reporting whether his cord injury was complete or partial. It’s also unclear at what level his quadriplegia/quadriparesis starts. It does not matter in terms of a lawsuit being filed. 

A lawsuit was filed and the plaintiff’s attorney argued that Nelson required nearly $5M in economic damages alone, including medical bills and lost wages. That’s before any calculation on pain and suffering. The legal argument against the defendant doctor was that it was a foreseeable that venipuncture could trigger a fainting syncopal episode and the patient should not have been placed in a sitting position during the blood drawing. The attorney argued that his client should have been in a padded chair that would prevent or cushion a fall. At the very least, the patient should have been lying in a supine position.

Next: Will Dr. Derm be protected from legal action?

 

Will Dr. Derm be protected from legal action?

Dr. Derm has always been very safety conscious, takes careful consent and is very careful to practice in accordance with the standard of care. He understands the concepts of duty and breach of duty, and he has a well trained staff. Notwithstanding, a simple mistake by his medical assistant may lead him to lose a very large medical malpractice case. The fact that his patient was a research patient, who signed consent to be a research  subject and who paid nothing for her treatment (and was, in fact, paid to come for her study visits) will not help defend Dr. Derm.  

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