When a patient suffers harm as a result of a clinician’s negligence, liability ensues. But what about a case in which a patient suffers an adverse result but there are no signs of negligence: Does the clinician bear responsibility for an adverse event if it is unknown what caused that event?
Dr. K, 51, was a urologist who shared an office with two other urologists. One of her patients was Mrs. A, 64, who was suffering from kidney stones. The physician recommended a lithotripsy procedure, explaining to her patient that the procedure uses shock waves to break up the stones so they can be passed naturally. The patient consented to the procedure and it was scheduled at a local medical center.
On the day of the procedure, Dr. K greeted her patient and spoke to her before the patient was put under general anesthesia. The procedure went as planned. Dr. K administered 2,000 shocks to each of two kidney stones to break them up. The number of shocks and the kilovolt settings were well within the established guidelines. A fluoroscopy was used to ensure that the shocks were focused on the stones. Dr. K noted in the patient’s file that there was a dime-sized lesion on the patient’s flank afterwards, but that this is common with this procedure.
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The patient awoke after the procedure and seemed fine. Her husband took her home later that day and Dr. K scheduled the patient for a follow up exam the next week. However, the next morning Mrs. A fainted as she was getting out of bed and emergency medical personnel rushed her back to the hospital, where she was diagnosed with a ruptured spleen. Mrs. A had emergency surgery to remove her spleen, and was hospitalized for nine days.
After this experience, Mrs. A retained a plaintiff’s attorney. “It’s Dr. K’s fault,” Mrs. A told the attorney. “I had the procedure that she recommended, and the next day my spleen had to be removed. And now I’ve been told that without a spleen I’m at a greater risk for infection. I want to be compensated for this.”
The attorney took the case and filed a malpractice lawsuit against Dr. K, who immediately met with a malpractice attorney. “I did nothing wrong,” she told the attorney. “The procedure went perfectly. What happened to Mrs. A wasn’t due to anything that I did.”
Settlement discussions between the two sides failed when Mrs. A demanded over $400,000 to settle prior to trial. Dr. K refused to accept any liability, and the case went to trial.
At trial, Dr. K’s attorney presented testimony from the nurse, anesthesiologist, and others who had been in the room during the procedure. All testified that the procedure was performed properly, and that nothing untoward had occurred. One witness testified that he had personally witnessed hundreds of the same procedures and that nothing was out of the ordinary in this case. Dr. K took the stand to testify that everything had been done properly, but that sometimes spleen injuries could occur following lithotripsy, although the reason why is unclear. The defense expert witnesses concurred with this statement.
Mrs. A’s attorney countered by presenting testimony from an expert who alleged that spleen injuries do not occur in the absence of negligence, so negligence must have occurred. However, on cross-examination the expert said that he could not specify what the negligence was, only that “someone must have made a mistake” since the plaintiff suffered a ruptured spleen the day after the lithotripsy procedure.
During closing arguments, Mrs. A’s attorney argued that the fact that Mrs. A suffered a ruptured spleen the day after the procedure was indication that negligence had taken place. The defense attorney, in his closing argument, told the jury that if Dr. K had done something wrong, the plaintiff should be able to show what it was, and if they were unable to, then Dr. K should not be liable.
The jury sided with Dr. K and found her not liable for Mrs. A’s injury.
