Dr. W, 54, was a general practitioner with his own office. One patient who he was particularly impressed with was Mrs. S, 35. The patient had moved to the community five years ago, hoping that a smaller town would be a better place for her autistic child.

Mrs. S had her medical records transferred to Dr. W’s practice when she moved into town, so he was aware that while Mrs. S was in otherwise good health, she had undergone a splenectomy prior to relocating. Over the past few years, Dr. W had seen Mrs. S seven or eight times for minor complaints including a bad case of poison ivy, an ear infection, a sore throat, and a twisted ankle.

Late one afternoon, Dr. W’s nurse told him that Mrs. S was on the phone. “I’m really not feeling well,” Mrs. S said. “I’ve had a fever for a few days, my joints ache, my head hurts, and I feel very weak. I was wondering if you might have time to see me tomorrow morning.”


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“Certainly,” Dr. W replied. “In the meantime, drink plenty of liquids and get some rest—it sounds like the flu.”

A Possible Infection

But it wasn’t the flu. After examining Mrs. S, the physician sent her to the hospital suspecting a pneumococcal infection. The patient had been having difficulty breathing, had extreme joint pain and a 103 degree temperature.

“I’m very concerned,” the physician said to his nurse as they studied the patient’s file. “She had a splenectomy about seven years ago. The records indicate that they gave her a pneumococcal vaccination in the hospital. She’s been coming here for about five years. Did we ever revaccinate her, or suggest she get revaccinated? Anything in the notes?”

“No,” the nurse said. “She was always here for sick visits, never for a checkup…”

Dr. W shook his head unhappily. “I didn’t suggest she get revaccinated,” he said, “but I should have.”

Mrs. S did indeed have a serious pneumococcal infection. She required a three-month hospitalization. While she was in hospital, she became septic and suffered organ failure and necrosis. As a result, she had to undergo a partial amputation of her toes. After her hospital stay, Mrs. S had to spend an additional two months in a rehabilitation facility.  

During this time, Mrs. S had to leave her son in the care of her mother, and was unable to keep her job. Dr. W visited Mrs. S while she was in hospital and found her to be a changed person. Mrs. S was stressed, angry, and bitter. “How am I going to run after my boy without my toes?” she asked the doctor. “How am I going to take care of him without a job? Why did this happen to me?” Dr. W didn’t know what to say.

Legal fallout

While Mrs. S was recuperating, another physician asked her whether she’d had another Pneumovax booster since the one she received in the hospital after her splenectomy. When he learned that she hadn’t, he mentioned that her primary care physician should have revaccinated her. Armed with this information, Mrs. S called a plaintiff’s attorney to explore her options.

After having an expert review the records, the attorney agreed that the patient’s primary care practitioner breached the required standard of care by not telling her that she needed another pneumococcal vaccination. A lawsuit was filed against Dr. W.

The physician met with his own attorney and explained his position. The patient never actually came in for a checkup, the doctor said. “I never examined her in the context of a wellness visit or for preventive care; all of Mrs. S’s visits were for acute care issues,” he told the attorney.

After several discussions, the parties agreed to mediation. After two mediation sessions, the case settled for $500,000.

Legal issue

Mediation is a form of alternative dispute resolution—a way to resolve disputes between parties without resorting to trial. An impartial third party, the mediator, helps the parties negotiate a settlement that is acceptable to both sides. The difference between regular negotiations between parties (and their lawyers) and mediation is the presence of the third-party mediator and the fact that mediation has more structure and a timetable. Mediation is often a good alternative to trial, which can be costly both in money and time, and is often more successful than regular negotiations because of the assistance of the mediator.

If the mediation fails and no settlement is reached, the parties have not forfeited their legal rights and can still go to trial. Whatever takes place during the mediation remains private and confidential. In this case, the clinician decided that mediation was preferable to a trial, and would provide a better outcome for both themselves and his former patient.

Protecting yourself

Unfortunately, patients do not always schedule regular exams or preventive visits. It is often hard, sometimes impossible, to attend to health maintenance issues when a patient is in for an acute care visit. But many patients, unwisely, only see their physician when they are ill. With a patient like this, it is advisable to do two things: orally remind him of the importance of routine check ups and make a note in the patient’s file that he should return for a regular checkup and to schedule routine blood tests and immunizations.

When patients are elderly or have chronic health issues, it is especially important to remind them of the importance of immunizations. In this case, Dr. W, knowing that Mrs. S had a splenectomy, should have advised her to get a pneumococcal vaccination since she was a high-risk patient. Had he given her that advice, and had she chosen to ignore it, he would have been protected from any liability. Had he given her that advice, and had she chosen to take it, this story could have had a happier ending for all involved.