CASE OF THE MONTH: NON-MEDICAL FACTS SOMETIMES CAN IMPAIR THE DEFENSE OF A CASE

By Gordon Ownby
CAP-MPT's General Counsel

In the free-for-all that can be the prosecution and defense of a medical malpractice case, issues that aren’t directly related to standard of care can cause an otherwise defensible claim to turn into one markedly less so.

That is why a physician’s improper alteration of a medical record will undermine his or her credibility on issues unrelated to the chart. But a physician’s judgment can also be criticized for less obviously egregious decisions.

A 51-year-old woman had been a patient of Dr. PS, a plastic surgeon, for 15 years. Her history included visits to the clinic approximately every six weeks for facials and a blepharoplasty without complication.

At around the time that the patient decided that she wanted Dr. PS to perform a facelift, she was being treated elsewhere for carpal tunnel syndrome. When her orthopedic surgeon told the patient that wrist surgery would put her out of work for four weeks, the patient decided that having the facelift performed during that period would be ideal.

Several days before the scheduled facial surgery, however, Dr. PS’s office manager contacted the patient to tell her that surgery would need to be postponed because Dr. PS had broken his wrist. The patient told the manager that because of the timing, she planned on contacting another plastic surgeon.

The patient later claimed that Dr. PS called her and said that his wrist was healing and that that he would be able to do the surgery as planned.

Dr. PS, accompanied by a third-year resident from a nearby university’s plastic surgery program, performed the plastic surgery two days after the patient’s out-patient hand surgery. Neither physician noted any complications from the facial procedure.

At her first post-operative visit the next week, however, the patient complained of numbness in her right forehead and an inability to close her right eye. When her condition failed to improve, plaintiff consulted with other specialists, who told her that she suffered from a severed nerve. The plaintiff pursued an arbitration action against Dr. PS in accordance with the Physician-Patient Arbitration Agreement that she had signed for the blepharoplasty two years earlier.

Plastic surgeons consulted during investigation of the claim noted that Dr. PS obtained a thorough informed consent, describing the risk of nerve injury. Likewise, they had no criticisms regarding the patient’s candidacy for the surgery or Dr. PS’s surgical approach.

Troubling to the experts was Dr. PS’s decision to perform the surgery in a cast while his forearm and dominant hand were in a splint. Though Dr. PS had no pain in his hand and had full range of motion in his fingers at the time of surgery, there was no doubt that the patient’s attorney would present a case of negligence to the arbitrators by linking the complication to Dr. PS’s physical impairment. The claim resolved informally prior to the arbitration hearing.

Most of the time, injuries that prompt medical malpractice claims occur in the absence of negligence – after all, some 80% of all claims are closed without payment. Successfully defending those claims, however, requires that a plaintiff and a plaintiff’s medical expert not be able to spin a story of negligence to the jury or arbitrator.

The plastic surgeon with the broken wrist could have been just such a story.

Comments on Case of the Month may be directed to Gordon Ownby, CAP-MPT’s general counsel, at gownby@cap-mpt.com