Legal Pearls: Negligent But Not Liable?

Mr R presented at the emergency department with chest pain, shortness of breath, and coldness and numbness of his left arm over a 2-month period, and an inability to eat over the previous 3 days.

He was seen by the emergency room physician, Dr M, who was a native of Spain, and although he knew English, he was not completely fluent.

Dr M diagnosed the patient as having poorly controlled diabetes and severe osteoarthritis of the spine. After consulting with the patient’s regular physician, Dr F, Dr M prescribed pain medication and discharged the patient with instructions to see Dr F the next morning.

The following day, Mr R returned to the hospital where he was diagnosed as having suffered a heart attack about 72 hours prior to his admission. Although he was initially stabilized, his condition began to deteriorate, and he died 2 days later.

Were Dr F and Dr M negligent?

(Discussion on next page)

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association and editor of Pharmacy Times.

In this case, we look at the elements of a medical malpractice case and how all of the elements must be met in order for a defendant to be found liable.  The case involved 2 physicians–the patient’s regular doctor and an emergency department physician.

Clinical Scenario

The patient, Mr R, 60 years old, went to his local emergency room one afternoon in May complaining of chest pain, shortness of breath, coldness and numbness of his left arm over a 2-month period, and an inability to eat over the previous 3 days.

He was seen by the emergency room physician, Dr M, who had been working at the hospital for the past year. Dr M was a native of Spain, and although he knew English, he was not completely fluent. Compounding this issue was the fact that he was working in a hospital in the South, where some patients’ accents were difficult for him to understand. Such was the case with Mr R. He had to ask the patient to repeat himself several times, and even so, he wasn’t completely sure he understood.

The physician conducted routine tests, but did not diagnose or rule out cardiac problems, despite the patient’s complaints. Instead, Dr M diagnosed the patient as having poorly controlled diabetes and severe osteoarthritis of the spine. After consulting with the patient’s regular physician, Dr F, the emergency room physician prescribed pain medication for the patient and discharged the patient with instructions to see Dr F the next morning.

The next morning, the patient went to his general practitioner’s office where Dr F prescribed medication for diabetes and hypertension and sent Mr R home.  The following day, Mr R returned to the hospital where he was diagnosed as having suffered a heart attack about 72 hours prior to his admission. Although he was initially stabilized, his condition began to deteriorate, and he died 2 days later.

His bereaved family consulted with a plaintiff’s attorney. “My husband went to the hospital,” his wife said to the attorney. “He told the doctor he had chest pains! But they just released him.”

The attorney filed a lawsuit against Dr M, Dr F, and the hospital.

The defense attorneys for the physicians hired medical experts to go over the records.  While all the medical experts faulted Dr M for not fully understanding the patient’s complaints, they all agreed that based on the medical evidence, the plaintiff would have a hard time succeeding at trial. “They need to show not just that you were negligent,” said the attorneys, “but also that the negligence was what caused or significantly contributed to his death. The question is, if the patient had been diagnosed when Dr M first saw him, would his chances of survival have increased by some reasonable amount. The answer, based on the medical records, is no,” said the attorneys.

The Trial

The case went to trial. At the end of the trial, the court found that the 2 physicians had been negligent in their treatment of Mr R but that the plaintiffs had failed to prove that this negligence caused Mr R’s death. The court held that the plaintiffs had failed to carry their burden of proof showing that Mr R’s chances of survival would have been increased had the heart problems been diagnosed 2 days earlier. Medical testimony established that the damage to Mr R’s heart was substantial and that hospitalizing him 2 days earlier would not have changed the ultimate outcome for the patient.

The court had some harsh words for Dr M, however, and held that he had a duty to take adequate steps to be certain that he fully understood Mr R’s complaints. “The facts presented do not indicate that the doctor failed to make a proper diagnosis or differential diagnosis of the symptoms of which he was aware. Rather, the evidence shows that Dr M failed to understand the nature of Mr R’s complaints.”

NEXT: The Elements of Malpractice, and Take Home

The Elements of Malpractice

The 4 basic requisite elements of a medical malpractice case include: a duty of care owed by a doctor to a patient, a breach of that duty (meaning falling below the requisite standard of care), causation (meaning a direct cause between the patient’s injuries and the medical professional’s breach of duty), and damages (meaning actual harm). In this case although 2 of the requisite elements were there (duty owed by the physicians, and breach of that duty), the court did not find that the injuries were caused by the breach of the physicians’ duties. Without the requisite element of causation, a medical malpractice case will fail. So even though the court found that both physicians were negligent, it did not find that this negligence caused the patient’s death.

What’s the Take Home?

The most interesting thing about this case was the court’s mention of Dr M’s responsibility to make sure he understood his patient’s complaints. Often the issue is that the patient does not speak English. Translators, translation services, and family members are often used in these cases to facilitate communication. But if it is the physician who does not fully understand English, then it is the physician’s responsibility to make sure that he or she finds a way, via a translator, another staff member, a family member, or otherwise, to understand a patient’s complaints.

Bottom Line—Without truly understanding what a patient’s symptoms are, you cannot properly treat that patient.