Patient Fault Doesn’t Usually Account for Much

In the typical medical malpractice trial, the jury’s decision depends on which expert it believes as to whether a defendant’s medical treatment was appropriate.

In some of those cases, there is also a question of whether the patient contributed to the harm by failing to follow a physician’s instructions.

A recent hard-fought trial shows, however, that juries are not likely to let a patient’s actions excuse a physician who they think made an error.

A 35-year-old small-business manager visited the emergency room for respiratory difficulties. According to the triage nurse, the patient complained of difficulty breathing for the past day and left-sided chest pain with deep inspiration. The patient also reported a history of pneumonia. Oxygen saturation was 97% and the nurse noted diminished breath sounds on the left side. Dr. ER1, the emergency room physician, noted that the patient said that his symptoms were very similar to his three previous experiences with pneumonia, namely, discomfort inside his left chest wall lasting about two days.

Though the patient had a moderately productive cough, Dr. ER1 found no ear pain, sore throat, or drainage. The chest exam revealed clear breath sounds. The heart exam was unremarkable, the throat and ears were clear, and the extremities showed no swelling. Dr. ER1’s impression was bronchitis. He prescribed an oral antibiotic and encouraged the patient to follow up if his symptoms did not resolve within three days.

Eight months later, the patient returned to the emergency room complaining of shortness of breath and back pain. The patient told a physician assistant that he felt the same as when he had past episodes of pneumonia. The PA charted that the patient was pacing in the room and complaining of back pain that increased with inhalation and coughing. Physical examination revealed decreased breath sounds at the left base, rales, and tenderness over the left paraspinal muscles and ribs. Heart sounds were normal. When the emergency room physician arrived, (Dr. ER2), he ordered an IV analgesic and considered kidney stones—until the urinalysis returned negative. A chest x-ray read by the radiologist showed no acute disease: The lungs were clear of focal consolidation and vascular engorgement.

Dr. ER2 treated the patient for clinical pneumonia and pleuritic chest pain and ordered an antibiotic injection, pain medication, and a steroid. Dr. ER2 discharged the patient with pain medications and antibiotics and instructed him to follow up with his private medical doctor for a re-check in five days -- sooner if he got worse.

The patient did not visit his primary care physician even though, according to his wife, he continued to have shortness of breath and chest pain over the next two months. Then, two months after the last ER visit, the patient passed out at home and was declared dead at the hospital where he had been transported by paramedics. A coroner’s autopsy noted cause of death as dilated cardiomyopathy. The examiner’s report showed a severely enlarged heart and bilateral ventricular dilation. Coronary arteries were small in diameter but showed no arteriosclerotic changes.

The patient’s wife and two young children sued Drs. ER1 and ER2, (and others) for the patient’s death. Their theory against Dr. ER1 was failure to order a chest X-ray and against Dr. ER2 for misreading the X-ray and failing to order an EKG. (The patient’s primary care physician was also sued under the theory that he should have picked up on the patient’s heart problem over the years.)

At trial, the issue of whether Dr. ER2 should have ordered an EKG was fiercely contested by the expert witnesses. In addition to defending Dr. ER2’s decision not to perform the EKG, defense counsel told the jury it should find the patient was contributorily negligent for failing to follow instructions on visiting his primary care physician.

In the end, the jury sided with the plaintiff’s expert who testified that had an EKG been performed, it would have been read as abnormal and the young father would still be alive.

And what of the patient’s degree of fault? The jury actually did find that the patient contributed to his own death – by 15 percent, to be exact. When the jury’s award came in as a total against Dr. ER1, Dr. ER2 and the primary care doctor, the judge reduced the non-economic damages portion of the award by that 15 percent. But because a majority of the family’s loss was in economic damages (which are not reduced even when a patient is partly at fault) the total award was still high -- $1.6 million.

Patient non-compliance will never be eradicated—only treated with focused communication and careful documentation. And this case shows that when the jurors believe that the physician committed an error, the patient’s own role in the outcome will not account for much.

Gordon Ownby is general counsel at CAP-MPT.Comments on Case of the Month should be directed to gownby@cap-mpt.com