Dr. N, a 58-year-old cardiologist, had dealt with many challenging patients in the past, but Mrs. Y was particularly abrasive. They met when she came into the medical center where Dr. N practiced for a diagnostic cardiac catheterization following an episode of angina. Mrs. Y, a 63-year-old insulin-dependent diabetic, listed a litany of complaints throughout the procedure. When told she had severe atherosclerosis and needed emergency coronary artery bypass surgery, she immediately refused treatment—not listening to reason. She left the hospital that day against medical advice.
Three days later, however, Mrs. Y returned to the medical center and consented to the surgery. The bypass went as planned, and Mrs. Y remained in hospital for 10 days of recovery. Returning for a follow-up two weeks later, her midsternal incision was examined and staples removed. During the examination, Dr. N discovered that a portion of the wound was purulent, draining, and healing poorly. Cultures were obtained and sent for testing, and Mrs. Y was scheduled for another follow-up visit.
“I have to come back again?” complained Mrs. Y. “Is that really necessary? It's a long trip and I have other things to do.”
Dr. N assured the patient that another visit was necessary to ensure the wound was healing properly.
Complications from bypass surgery
Four days later, Mrs. Y called Dr. N, vociferously complaining that she had developed a fever. Dr. N obtained the culture report, and informed Mrs. Y that she would need to return to the medical center immediately, as tests indicated that she had multiple infections in her midsternal wound.
Mrs. Y refused. “I'm not coming back,” she announced. “It's almost an hour away. I'm weak and it's too far for me to go in my condition.”
“You have an infected wound,” Dr. N replied. “It needs to be examined and you will need antibiotics to treat it.”
“Why don't you just prescribe the antibiotics over the phone” she asked.
“I'm sorry,” Dr. N said. “That's not an option. You are best off returning here, so that I can properly evaluate the problem and start treatment right away. It's dangerous for you to wait. This sort of infection can be life-threatening if not treated promptly.”
“Well, I'm not going,” Mrs. Y said. “You'll just have to call antibiotics into my pharmacy.”
“Mrs. Y, this is very serious. I cannot prescribe anything over the phone without seeing you. You must get treatment. If you don't want to come back here—which is really the best option—then your alternative is to go to your local emergency department immediately. You have an infection in your chest that must be treated or it could threaten your life. Do you understand?”
“I understand that you're not being helpful,” replied Mrs. Y, hanging up the phone.
Dr. N noted the interaction in the file, sighed, and went on with his business.
Mrs. Y did not return to the medical center, and waited 10 days before going to the local emergency department. When Mrs. Y finally sought treatment, surgery was necessary to debride the wound, and a portion of her sternum was removed.
After recovery, Mrs. Y lodged a complaint against Dr. N with the Physician Medical Review Board. The board found no evidence of wrongdoing on Dr. N's part. Despite this, Mrs. Y found an attorney who was willing to take the case, and she sued Dr. N.
Dr. N's insurance company provided a defense attorney who assured him that this case had no merit. However, Dr. N still had to take several days off work to go through the deposition process. A motion to dismiss was quickly filed and granted. But just as Dr. N was about to breathe a sigh of relief, he was notified that Mrs. Y had appealed, and that the case was still going to court.
An appeals court now had to determine whether Dr. N had failed to observe the applicable standards of care and whether he had misled Mrs. Y, contributing to her complications. The appeals court ultimately decided that Dr. N's performance was appropriate. His duty to Mrs. Y was to advise her of the medical condition (a septic infection), make recommendations for treatment (return to the medical center), inform her of the consequences of not being treated and present alternatives, all of which Dr. N did. The case was dismissed.
Legal Background
This case demonstrates the necessity of having malpractice insurance. Even prudent clinicians risk being sued by disgruntled patients, and there is always an attorney willing to take on a case, no matter how flimsy the evidence. The constitution guarantees an individual's right to file suit for real or perceived losses. And lawsuits are costly, especially for the defendant. Plaintiffs' attorneys will often take a case on a contingency basis—that is, they will be paid only if they win. The defendant, however, has to foot the cost of an attorney. And there are other “costs” involved: missed workdays, associated stress, and the damage to one's reputation.
As this case shows, insurance can protect you from being financially hurt by a frivolous lawsuit, even though you cannot ultimately protect yourself from being sued.
Protecting Yourself
Dr. N handled the situation appropriately. It is essential when speaking to a patient on the phone to be clear about the situation, especially when talking to a noncompliant patient. A patient should be told what the medical issue is, what to do, and the potential consequences of not following instruction. Obviously, a face-to-face discussion is preferable. But when a patient refuses to come in, it is necessary to fully explain the situation and the possible outcome over the phone in order to protect yourself.
Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.
Disclaimer: Cases presented are based on actual occurrences. Names of participants and details have been changed. Cases are informational only; no specific legal advice is intended.