When the plaintiff is a doctor

October 5, 2007

If a colleague comes to see you, do you face a tougher standard when checking symptoms and giving treatment?

There are roughly 700,000 doctors who practice patient care medicine in this country. Chances are, if you're not already seeing one or more of them as patients, you soon will.

Which brings up something of a dicey-albeit relatively rare-possible scenario: What if a physician-patient is unhappy with his result and winds up suing you? Can you be entirely to blame? The patient is a doctor himself, after all. Shouldn't he be responsible for reporting his symptoms accurately and following your instructions, same as any other patient under your care? Or should he be held to a higher standard?

Those are the questions at the core of a recent Texas Supreme Court decision, regarding a case that involved a psychiatrist who saw an internist for abdominal pain. Here's what transpired.

This case began in 1999 when psychiatrist David Axelrad sought treatment from Houston internist Richard Jackson after enduring intermittent abdominal cramps and diarrhea for several months. After questioning and examining Axelrad, Jackson prescribed a laxative and enema for a fecal impaction.

Axelrad returned home and followed those orders. He immediately felt severe abdominal pain, nausea, and chills. His wife rushed him to the hospital where he ended up spending nearly three weeks after undergoing surgery for what turned out to be diverticulitis and a perforated colon.

Axelrad sued Jackson, charging him with negligent diagnosis and treatment. In court, Jackson accused the psychiatrist of failing to report that his pain had originated in the lower left quadrant. If he had, Jackson claimed, that symptom would have alerted him to the possibility of diverticulitis. Axelrad, however, argued that it's the physician's duty to elicit the relevant medical history from the patient.

The jury apparently saw merit in both sides' arguments. While they found Jackson partially liable, they found Axelrad 51 percent responsible for his own injury. Under the Texas comparative negligence law, that meant he couldn't collect any damages.

Not so fast, an appellate court said. It overturned the jury's verdict, largely on the grounds that in order to find a patient liable for comparative or contributory negligence, there must be evidence that he failed to volunteer information he knew was significant.

In a unanimous opinion last April, however, the Texas Supreme Court overruled that decision and upheld the trial verdict. While most patients might not be expected to volunteer where the pain began, a physician-patient like Axelrad would be under a greater obligation to report such information, even if the treating doctor didn't specifically ask about it. Since a jury "must consider a physician's special knowledge when a doctor is the defendant," the court held, "it is hard to see why they should not do so when a doctor is the plaintiff."

The court noted that Axelrad had repeatedly emphasized his own medical expertise during the trial, pointing out that he had given expert testimony in more than 150 cases. "Once you reveal that," says Erin Lunceford, one of the Houston attorneys who defended Jackson, "you've raised the bar even higher in terms of what you're obligated to tell your doctor."

Lessons for doctors on both sides of the stethoscope

Though novel, the Axelrad-Jackson case suggests some important lessons for doctors when they're patients, as well as for physicians who treat their colleagues. "In cases involving contributory negligence, the normal standard is, 'What should a reasonably prudent person do in the same or similar circumstances?' " Lunceford says. "For every patient, that means telling the treating physician as much as possible regarding your symptoms and any medications you're taking. Just because they're both doctors, he can't assume that the treating physician can read his mind."

Similarly, if a physician-patient suffers a setback because he didn't take his prescribed medication or didn't follow the treating doctor's advice, a jury might be more likely to find him partially liable for any resulting problems than it would if the patient were an ordinary layperson.

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