American Association for Physician Leadership

Quality and Risk

Medical Malpractice: An Introduction to Tort Law Part IV: Liability

Timothy E. Paterick, MD, JD, MBA

June 8, 2022


Abstract:

The term malpractice refers to any professional misconduct that arises from an unreasonable lack of care, skill, or judgment in carrying out professional or fiduciary duties. The term medical malpractice is used because it is the common and traditional term used in claims alleging medical negligence by healthcare professionals.




This article is the fourth of four parts.

Part I of this series presented an introduction to basic nomenclature and concepts pertinent to medical malpractice law. Part II continued with an examination of the four elements that underlie any malpractice action: duty; breach of duty; causation; and damages. Part III presented case studies of several instances of aortic dissection that resulted in malpractice actions being brought against physicians and analyzes the results as a way to illuminate the way the legal system works. This final part addresses liability.

Case 1: Assumption of Duty

Schmitz v. Blanchard Valley OB-GYN Inc., et al.

The case of Schmitz v. Blanchard Valley OB-GYN Inc., et. al. (63 Ohio App. 3d 756 (Ohio Ct. App. 1989) 580 N.E.2d 55) involved a discussion of the “assumed duty” doctrine, a doctrine that has particular relevance to emergency physicians, especially when treating complex disorders. In this case, the Court of Appeals of Ohio considered the plaintiff’s appeal, which was based on the trial court’s refusal to give a requested jury instruction on assumption of duty.

The defendant physicians cared for MS during her pregnancy and subsequent delivery. MS, who had a history of coarctation of the aorta and other cardiovascular disorders, developed hypertension during her pregnancy. The plaintiff based his claim on the defendant physician’s failure to consult a cardiologist.

The defendant physician determined that MS was suffering from an elevated blood pressure that he diagnosed as pregnancy-induced hypertension. He instructed her to “get bed rest.” Subsequently, MS’s blood pressure returned to normal. The treating physician again found MS’s blood pressure to be elevated at the time of a later office visit and again prescribed bed rest. The defendant, Dr. EZ, found that MS’s blood pressure was still elevated and that she had developed edema. He admitted her to the hospital. On the evening of admission, MS went into labor and delivered a 4-pound, 8-ounce baby girl. Unfortunately two days following the birth of her daughter, MS died, the result of an aortic dissection.

At trial, the plaintiff requested the court to instruct the jury on the “assumed duty” doctrine. According to the plaintiff’s requested jury instruction, the doctrine provides that when a physician has a duty to obtain a consultation from a specialist and fails to do so (in this case a cardiologist), the physician then, as a result of failing to obtain the indicated consultation, assumes the duty of caring for the patient consistent with the standards of care applicable to the specialist (in this case, cardiology). The court refused this proposed jury instruction, and the jury subsequently returned a verdict in favor of the defendants. The refused jury instruction was the sole claim of error cited by the plaintiff on appeal.

The court of appeals, relying on an earlier Minnesota case, explained that liability based upon the assumed duty doctrine requires more than simply a breach of the duty to consult a specialist. There is a second element to the doctrine. It is the standard of care of the specialist that provides the basis for the second element of the doctrine. In order to prevail on a theory of assumed duty, the plaintiff must show that the physician not only failed to obtain the specialty consultation, but also failed to meet the standard of care of the specialist (in this case, cardiology).

It is important to note, however, that the mere breach of duty to refer a patient to a specialist for treatment will not of itself make out a prima facie case of negligence against the nonspecialist healthcare provider. It must appear that the breach of the duty to refer to a specialist in fact caused the plaintiff’s injury, and this can be shown only if the treatment the plaintiff received was in some way inferior to the treatment he or she would have received from a specialist. Thus, in order to make out a case of negligence based on a breach of duty to refer a patient to a specialist for treatment, the plaintiff also must present evidence from which the trier of fact may determine that in the treatment which he, in fact, administered, the defendant failed to exercise that degree of skill, care, knowledge, and attention ordinarily possessed and exercised by specialists in good standing under like circumstances.

The court held that, even if it were assumed that the physician had a duty to refer MS to a cardiologist and the defendants breached that duty, the plaintiff failed to show that the treatment MS received was in some was inferior to the treatment she would have received from a cardiologist. In fact, plaintiff had fallen far short of the burden of proof in that he had failed to even introduce evidence at trial that would support a conclusion that a cardiologist would have been better qualified to manage the care of MS under the circumstances.

Case 2: Liability of On-Call Physicians

Linda J. McKinney, et al. v. Frances C. Schlatter, MD, et al

In the case of McKinney v. Schlatter (118 Ohio App. 3d 328 (Ohio Ct. App. 1997)), LM arrived at the emergency department (ED) at approximately 4 AM. He complained that he had begun experiencing chest pain at approximately 12:30 AM, which was followed by the onset of abdominal pain. The ED physician, Dr. FS, gave him two doses of Maalox, which relieved his chest pain. Dr. FS consulted by telephone with Dr. JS at approximately 5 AM and again briefly at approximately 6 AM regarding LM’s diagnosis.

During both of those telephone consultations, Dr. JS told Dr. FS that he “did not think the cause of McKinney’s pain was cardiac in nature.”

The ED physician contacted LM’s family physician at approximately 7:30 AM, and the family physician said that he would see LM later that morning. LM was discharged from the ED at approximately 8:30 AM. LM died later that morning, prior to seeing his family physician, due to aortic dissection.

A medical malpractice lawsuit was brought against Dr. JS and Dr. FS. The initial trial resulted in a directed verdict for Dr. JS (i.e., the court entered a verdict for Dr. JS without allowing the jury to consider the issue) and a jury verdict for Dr. JS.

The basis for the court’s directed verdict was its ruling that because Dr. JS only consulted by telephone and never actually saw the patient, there was no physician–patient relationship. Therefore, because Dr. JS owed no duty to LM, he could not be held liable for LM’s death.

The Court of Appeals of Ohio reversed that decision, holding that a physician–patient relationship can exist by implication between an ED patient and an on-call physician who is consulted by the patient’s physician, but who has never met, spoken with, or consulted the patient when the on-call physician:

  • Participates in the diagnosis of the patient’s condition;

  • Participates in or prescribes a course of treatment for the patient; and

  • Owes a duty to the hospital, staff, or patient for whose benefit he is on call.

The court of appeals then remanded the case for further proceedings as to Dr. JS to determine whether a physician–patient relationship existed between him and LM under the facts of the case.

A second jury trial had Dr. JS as the sole defendant. At issue in determining whether Dr. JS owed a duty to LM was the third element in the appeals court’s holding: “Owes a duty to the hospital, staff, or patient for whose benefit he is on call.” That is, was Dr. JS on call for the hospital when he was called and participated in Mr. LM’s treatment?

Testimony on this point was conflicting. Dr. JS acknowledged that he was on call for his practice. However, he did not state that he was on call for the hospital or its ED. Dr. FS, on the other hand, testified that she called Dr. JS because he was the cardiologist on call.

After the conclusion of testimony, Dr. FS’s counsel moved that certain call records from the hospital be admitted into evidence. The plaintiff’s counsel objected to the late admission of the call records, but the court overruled the objection and admitted them into evidence. These records indicated that Dr. JS’s practice had been on call for cardiology, but that another cardiology group had been on call at the time of the phone conversations. Dr. FS’s calls to Dr. JS were made at approximately 5 AM and 6 AM.

Following trial, the jury returned a verdict for the defense. The plaintiff appealed the judgment, claiming that admission of the call records after the conclusion of testimony was prejudicial error. The Court of Appeals of Ohio rejected this argument and affirmed the judgment.

Commentary: This case was interesting in that it turned on interpretations of the hospital’s phone calls and cardiology on-call records. Because the call records were ambiguous on their face as to when call started and ended and because the records were admitted after the close of testimony, there was no testimony as to how the call schedule was actually implemented. The court had to interpret the call records. In so doing, the court of appeals almost certainly reached an incorrect conclusion: “The one-page calendar does not indicate any beginning and ending time for the days, therefore the 24-hour period applies.” That is, the court ruled that call began and ended at midnight, a call schedule that I have never experienced. The result was that Dr. JS could not be liable because when the calls were made to him (5 AM to 6 AM), he was, according to the court, not on call for the ED. He, therefore, owed no duty to the plaintiff. If the jury considered the fact that the ED physician had specifically called Dr. JS to be evidence that he was on call, they apparently found it unconvincing. The appeals court apparently found it irrelevant. This case gives insight into the complexity of the interpretation of negligence. From the 10,000-foot view the decision seems erroneous. Isn’t there a duty implied when a not-on-call physician nonetheless responds to a medical question from an ED physician or nurse?

Case 3: X-ray Follow-up

Gordon v. James Liquori, MD, et al

In the case of Gordon v. Liquori, patient RG experienced severe chest pain and was admitted to the hospital. He was under the care of Dr. JL, a cardiologist. Dr. JL initially considered a broad differential for RG’s chest pain that included a myocardial infarction, esophageal spasms, pneumonia, pericarditis, or a dissecting aortic aneurysm. By the following day, Dr. JL had determined, based on the laboratory tests and x-rays, that the chest pain probably was associated with pneumonia or pericarditis.

An echocardiogram was performed. Although the echocardiogram showed an abnormally large aortic root, Dr. JL did not note this when he first reviewed the echocardiogram. Dr. JL again reviewed the echocardiogram and concluded that it showed a markedly dilated ascending thoracic aorta.

Because of the abnormal echocardiogram, he ordered a CT scan of the patient’s chest, which was performed the next day. That same day, a radiologist employed by the hospital interpreted the CT scan to reflect an abnormality in the aorta, without concluding that it was caused by a dissecting aortic aneurysm.

The radiologist dictated his report, but did not immediately contact Dr. JL. The parties disputed whether Dr. JL had told the radiologist to contact him immediately if the CT scan suggested an aortic abnormality.

The next morning, Dr. JL read the radiology report and ordered an aortic root angiogram, which showed that the patient had a “dissecting aortic aneurysm.” The patient was taken to surgery at 2 PM that day, but, during anesthetic induction, his aorta ruptured and he suffered “profound circulatory impairment.” Although the surgeon was able to repair the aorta, RG was left in a vegetative state and died.

The patient’s survivors filed a medical malpractice complaint against Dr. JL and the hospital. They alleged that an earlier diagnosis of the aortic dissection would have improved the patient’s chance of survival and that Dr. JL had been negligent in not making the diagnosis in a more timely fashion. As to the hospital, the plaintiffs alleged that the radiologist, a hospital employee, had failed to promptly communicate the abnormal results of the CT scan to Dr. JL and that the nurses had failed to provide the radiology department with pertinent clinical data that would have alerted the radiologist to the urgency of the situation.

In response to interrogatories, Dr. JL answered that: “It is [the] defendant’s position that any alleged delay in diagnosing the patient’s dissection probably did not play a causative role in his death. However, in the event there is evidence presented that it did, the defendant contends that the radiologist contributed to the delay by not advising Dr. JL of the abnormal CT scan, in accordance with Dr. JL’s specific request, which failure resulted in an approximate 12-hours delay.” The hospital, on the other hand, indicated that its cardiology expert would testify that Dr. JL was negligent in not making a timely diagnosis. That is, it appeared during discovery that the two defendants would blame each other.

During the week before trial, Dr. JL filed a motion in limine to preclude plaintiffs from introducing any evidence concerning the defendants’ contingent expert witnesses, each of whom would criticize the other defendant. A motion in limine is a pretrial motion requesting the court to prohibit the opposing counsel from referring to or offering evidence on a matter that is, arguably, so prejudicial that curative instructions would not prevent the prejudice. Both parties had decided that, if the case went to trial with both defendants still in the case, neither defendant would call its standard-of-care experts to testify against the other. The court granted Dr. JL’s motion and ruled that the plaintiffs could not comment on the defendants’ experts’ failure to testify. It was this ruling that formed the basis of the plaintiffs’ appeal after the jury returned a verdict in favor of both defendants.

On appeal, the plaintiffs’ argued that the trial court erred in prohibiting them from:

  • Offering evidence that defendants had reached an undisclosed agreement to not present evidence of each other’s negligence, and that the failure to disclose their agreement until three weeks before trial “worked a fraud upon the court”; and

  • Commenting on the defendants’ failure to call these experts at trial.

The court of appeals held that:

  • Had the defendants entered into the alleged agreement, and there was no evidence introduced at trial of such an agreement, it would not have affected the integrity of the trial (there was no “fraud upon the court”); and

  • The trial court did not err in not allowing the plaintiffs to comment on the defendants’ failure to call their expert witnesses at trial. The judgment below in favor of the defendants was affirmed.

The court noted that a trier of fact (the jury, in this case) might draw an adverse inference from a party’s failure to present testimony only under limited circumstances. Factors to be considered by a trial court when deciding whether to allow comment regarding an uncalled witness are:

  • Whether the witness was under the control of the party who failed to call him or her;

  • Whether the party failed to call a seemingly available witness whose testimony it would naturally be expected to produce if it were favorable; and

  • Whether the existence or nonexistence of a certain fact is uniquely within the knowledge of the witness.

These factors are to be applied in the conjunctive (“and”) rather than the disjunctive (“or”). That is, the party wishing to comment on the failure to present the testimony must satisfy all of the factors. According to the court, in this case, the defendants’ uncalled expert witnesses “arguably meet the first two factors outlined above, they clearly do not meet the third.”

The trial court, therefore, was correct in not allowing plaintiffs to comment on the failure of the defendants to present their own opposing expert witnesses.

Risk Management Strategies

Physicians would be prudent to know the following “golden rules”:

  • Think about vascular possibilities. Many of the missed diagnoses that result in malpractice cases for emergency physicians are vascular in nature. It is, therefore, only prudent to liberally consider those diagnoses (e.g., aortic dissection, abdominal aortic aneurysm, pulmonary embolism, subarachnoid hemorrhage, and coronary artery disease).

  • Maintain a high index of suspicion for aortic dissection. If you do not think about aortic dissection, you will not diagnose it with acceptable sensitivity. We know that as many as 65% of aortic dissections are missed initially. If you do not have a significant number of negative results when ordering CT scans (or other definitive studies) for the purpose of ruling out aortic dissection, you are not looking hard enough for the diagnosis and will miss it.

  • Be especially careful when a patient has chest pain and has one or more risk factors for aortic dissection. There are many conditions that result in an increased risk of aortic dissection.

  • Never give thrombolytic therapy for acute myocardial infarction (AMI) without obtaining at least an upright chest x-ray to screen for aortic dissection. If the chest x-ray is suggestive of aortic dissection, obtain a quick definitive diagnostic test (CT or transesophageal echocardiograph [TEE]). Even if the screening chest x-ray appears normal, a quick definitive test also is indicated when the clinical suspicion of aortic dissection is high.

  • Remember that most patients with aortic dissection have an abnormal chest x-ray, but a normal chest x-ray does not exclude the diagnosis. As many as 90% of patients with aortic dissection will have an abnormal chest x-ray.

  • When aortic dissection is suspected, mobilize appropriate consultants on a “stat” basis. Consult cardiovascular surgery as soon as the diagnosis is made or when you have any significant clinical suspicion of aortic dissection, even before the diagnosis is definitively made.

  • When transfer for definitive care is appropriate, arrange the transfer expeditiously. Transfer protocols should be in effect.

  • If aortic dissection is suspected, immediately obtain a definitive diagnostic test (e.g., TEE, angiography, CT, MRI) and report the results of that test, if positive, on a “stat” basis.

  • When evaluating patients with chest pain, never forget that the definitive diagnosis of AMI does not rule out the concurrent presence of an aortic dissection.

  • When the diagnosis of aortic dissection is made, begin appropriate medical treatment immediately (i.e., blood pressure control). If using a vasodilator such as nitroprusside, remember to administer an intravenous beta-blocker before or simultaneously with the vasodilator so as to avoid reflex tachycardia.

  • Do not restrict your consideration of aortic dissection to patients who have “ripping” or “tearing” pain. Although this description of pain may be considered “classic” for aortic dissection, it often is not present.

  • Have a protocol in place ahead of time so that there is no confusion as to what definitive diagnostic tests are available, and which test will be used under the various possible circumstances.

  • If obtaining a definitive diagnostic test requires the patient to be transferred, have appropriate transfer protocols in place.

  • Always consider aortic dissection when chest pain is associated with neurologic or vascular symptoms and/or signs.

  • Aortic regurgitation in a patient with chest pain should trigger heightened concern of the possibility of aortic dissection.

  • If a patient has chest pain radiating to the back, or from the back to the front, be especially concerned about the possibility of aortic dissection.

  • A physician should expect to have a significant negative workup rate for aortic dissection. Just as a physician who never sends a patient to the operating room with a normal appendix will miss appendicitis, a physician whose work-up rate for possible aortic dissection approaches 100% will miss the diagnosis.

This four-part article has given you an in-depth discussion of medical negligence law that will contribute to your daily practice of medicine.

Timothy E. Paterick, MD, JD, MBA

Timothy E. Paterick, MD, JD, professor of medicine, Loyola University Chicago Health Sciences Campus in Maywood, Illinois.

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