A malpractice triangle: my patient, my colleagues—and me

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Dragged into a case as a witness, this FP was torn between loyalty to the plaintiff and friendship with the defendants.

A malpractice triangle: my patient, my colleagues­and me

Jump to:Choose article section...A failed attempt to prevent a suitGetting dragged into the caseA personal investigation of the evidenceHow the jurors formed their opinions

Dragged into a case as a witness, this FP was torn betweenloyalty to the plaintiff and friendship with the defendants.

The author, a family physician in Malibu, CA, is a contributing editorto Medical Economics.

Do you swear to tell the truth, the whole truth, so help you God?"

So help me God, the last place I wanted to be was the witness box inLos Angeles Superior Court.

"I do," I said, and sat down. The plaintiff's attorney tookhis time gathering his notes before walking over to the lectern, so I lookedaround the courtroom. The plaintiff, Allison Richards, sat directly in frontof me. She and her husband, Mark, are my longtime patients. And Mark worksat the insurance company where I'm a part-time medical director. (To protectthe participants' privacy, I've changed their names.)

John Peters sat to my left, behind the defense attorneys. He and hispartner Rich Canham, both FPs, owned the urgent care center where Allisonhad been treated. During the day, the two doctors worked at the center,doing mostly industrial medicine. After hours, they hired moonlighting physiciansto see patients, under a capitation arrangement with our local IPA. I knewJohn from our daughter's elementary school events, and I liked and respectedhim and Rich.

As I poured a cup of water from the pitcher in front of me, I scannedthe jury. When I reached the next to last juror in the back row, I froze.It was Mrs. Bellwood, my daughter's former second grade teacher. She gaveno sign of recognition, but I was sure she remembered me.

I mulled over the case. Allison, a bank manager, had come to our officeseveral weeks after injuring her arm. She explained that she'd slipped inher kitchen trying to reach something on a high shelf, and had hit her forearmon the edge of a step stool.

She originally went to our local ER. But since she belonged to an HMO,she was referred to my colleagues' urgent care center. There she saw oneof their moonlighting doctors, Greg Caldwell. He's a board-certified emergencyphysician with 15 years of experience and had been laid off when his hospitalclosed a few month earlier.

After examining Allison's arm--but without taking an X-ray--he diagnoseda sprain. He prescribed a nonsteroidal anti-inflammatory and advised her--inwriting--to make a follow-up appointment with me in three days.

Allison called me three days later and left a message that her arm wasstill painful. Relying on the diagnosis of sprain that she reported fromthe urgent care center, I left a message on her machine to try ice or Adviland, if the pain persisted, to call me back. Since I didn't hear from herthat week, I assumed the pain had subsided. But several weeks later, shecame in reporting continued pain.

When I examined her, she had swelling and point tenderness over the distalforearm. An X-ray confirmed a nightstick fracture of the ulna. I immediatelyarranged a referral to an orthopedist, who put her arm in a cast that afternoon.

A failed attempt to prevent a suit

Since I knew that my colleague Peters would be concerned, I told Allisonthat I planned to discuss the case with him, and asked her if she'd mind.She didn't, so I called him after office hours the same day and told himabout the fracture. "She didn't say anything about a suit," Isaid, "but you may want to give her a call, or notify your carrierjust in case. I wanted to let you know."

A few weeks later, when Allison called for a follow-up referral to theorthopedist, I asked if she'd heard from Peters. "Yes, he called me,"she said. "He said he'd reviewed the chart and didn't see where anythingwas done wrong. He said the exam hadn't shown any reason to do an X-ray,and he wondered why I hadn't come to see you in three days, as I'd beentold. He made it sound like it was all my fault."

By that point, Allison's cast had been removed, and X-rays showed thatthe fracture hadn't healed properly, so she was recasted. But that castingultimately failed, too, and the orthopedist had to perform a bone graftand plate the ulna. While that did heal the fracture, she still sufferedpain, and later she needed a second surgery to remove the plate.

After a year of pain and surgery, Allison and Mark filed suit againstCaldwell, the urgent care center, and its two physician owners. I wasn'tsurprised, but I had mixed feelings. Listening to her story, coupled withmy exam revealing point tenderness, I definitely thought an X-ray shouldhave been taken when she first went to the urgent care center.


But I also felt sympathy for Rich and John. Not having been there whenAllison first presented, I couldn't really know what she had said, or whatthe initial exam had shown. I occasionally work in urgent care and realizedthat I might easily have made the same decision. And the written instructionto make a follow-up appointment with me in three days was certainly appropriate.

Getting dragged into the case

I didn't want to take sides. I had tried to get Allison and my two colleaguesto talk with each other, hoping that would smooth things out. But when thatstrategy didn't work, I hoped both sides would hire their own experts andleave me out of it. No such luck.

Because of the possibility that I could be held liable for not havinginsisted that Allison come in for an exam when she first called my office,my insurance carrier assigned an attorney to represent me. During my deposition,the defense attorney asked, "Dr. Solomon, do you have an opinion aboutwhether an X-ray should have been taken at the first urgent care visit?"

My carrier's attorney had prepared me for this question. I replied: "Ididn't see Ms. Richards during that visit, and I'm not an orthopedic surgeon.So I'd defer to the experts on that question." I also emphasized thatmy daughter and Peters' were grade-school classmates, hoping to warn theattorney about the risk of calling me as a witness. That ploy didn't work:He subpoenaed me to testify in court.

At trial, my testimony and cross-examination were brief. I was askedabout the phone call from Allison, and whether I had actually talked toher or seen her at that point. Then I was asked about my later examinationof her, and about ordering the X-rays and the orthopedic referral. Therewere no dramatic exchanges.

A personal investigation of the evidence

On the last day of trial, the parties finally settled for an undisclosedamount. Afterward, out of curiosity, I discussed the case privately withboth sides.

Allison gave her version first: "I asked the doctor to take an X-raybecause it really hurt," she told me. "He explained that sprainsoften hurt worse than fractures, and that an X-ray wasn't medically indicated."She remembered the doctor's oral instructions were to call me in three weeksif she wasn't feeling better. But she admitted that the aftercare sheet--whichshe had signed--advised her to see me in three days, not three weeks.

When I asked Allison why she decided to sue, she said she hadn't consideredit at first. But after a year with two surgeries and continued pain, shebegan to think about it. She was upset with Caldwell because he hadn't takenan X-ray, and she was angry with Peters because he had made her feel likean idiot when he chastised her for not following up. She said she didn'tconsider suing me because she didn't blame me for her injury, and she trustedme based on our long relationship.

Next I spoke with John Peters. He felt bad for Allison because of whatshe had gone through, but he thought that her signing the aftercare instructionsheet obligated her to follow its advice to see me after three days. Ifshe had done so, the fracture would have been discovered much earlier, anda cast probably would have worked.

"If she had as much pain and swelling as she said she did at trial,why didn't she follow up with you sooner?" Peters asked. "Afterall, she's a bank manager, so she should have been smart enough to realizesomething was wrong."

There were two critical questions for the jury: Was Caldwell's failureto X-ray below the standard of care? And did that failure worsen Allison'sinjury? Even if the jurors decided those questions in Allison's favor, theyhad to determine whether--and how much--her failure to follow the writtenaftercare instructions had contributed to the injury.

I would be surprised if the point tenderness I had found when I examinedAllison hadn't been evident when Caldwell examined her. I believe the standardof care calls for examining the patient carefully for point tenderness,and--if it exists--X-raying the limb. Because she didn't get that care,Allison suffered continued pain and required treatment far in excess ofwhat would otherwise have been needed. However, since Allison failed tofollow the written instructions she received regarding follow-up care, Ifelt she was partially responsible for her injury.

How the jurors formed their opinions

At least, the case appeared that simple to me. But as I later learnedfrom talking with Mrs. Bellwood, it seemed much more complicated to thejurors, because they considered more than mere facts. The jury consideredmany issues and details that neither side had introduced into evidence,and whose relevance was highly questionable.

Mrs. Bellwood felt that most of the jurors had taken their job seriouslyand paid careful attention to the testimony. In fact, she had taken copiousnotes. Her conclusion was that the defendants should have paid something,but she also felt the plaintiff was foolish for not seeking help earlierfor her continuing pain.

When she talked to fellow jurors after the case, however, she discoveredthat hers was a minority view. According to Mrs. Bellwood (the only jurorI spoke with), most of the jurors would have voted for the defendants. Basedon the unfounded suspicions of one jury member, they felt that Allison'shusband had put her up to the lawsuit in order to acquire a little nestegg for their growing family.

I've know Allison and Mark for eight years, and I just don't see themthat way. When I asked Mrs. Bellwood where the idea came from, she saidit originated with a retired nurse on the jury, who persuaded the others,without citing any evidence, to support her theory.

Mrs. Bellwood felt the whole case wouldn't have happened if it hadn'tbeen for the HMO. "The HMOs are terrible," she told me. "They'rein business for themselves, not to help the patient. If Allison had beenseen at the hospital's emergency room, they would have taken an X-ray, andshe would have gotten a cast right away."

There were other factors--besides the evidence presented in court--thatinfluenced Mrs. Bellwood and her fellow jurors. One was the strong--andat least to Mrs. Bellwood, unpleasant--scent of aftershave lotion she noticedwhen she once stood next to Caldwell in the courthouse hallway. Toward theend of our conversation, she made another interesting remark that revealedthe effect of hidden biases: "I go to doctors," she told me, "andI know they aren't God. I know they make mistakes."

Listening to Mrs. Bellwood's account of the jury's reasoning made mewonder about the wisdom of asking a jury to decide a malpractice case. Physicianstend to see the issues in a case clearly in black and white, based on theclinical evidence. But jurors are different. If the evidence is clear-cut,and the clinical concepts are fairly simple, a jury trial is probably okay.But if there's a lot of gray area, with complex clinical details, a trialis risky, given the average juror's level of sophistication.

Just consider the influence of all the factors that have nothing to dowith the evidence: the appearance and behavior of the defendant and theplaintiff, the jurors' suspicions and biases, the involvement of an HMO.

Given all these factors, over which a physician-defendant has littlecontrol, going to trial means rolling the dice. With what I learned fromthis case, I now think it might often be wiser to settle. After all, whoknows whether the jurors will like my brand of cologne?

By Gil L. Solomon, MD

Gil Solomon. A malpractice triangle: my patient, my colleagues--and me.

Medical Economics