What Malpractice Crisis?

by Ann S. Lofsky, M.D., Board of Governors

The Doctors Company has written extensively about the mounting crisis in the availability and affordability of malpractice insurance for physicians. One of the main factors cited is the increase in claims severity and the randomness of “outlier” verdicts—when juries award millions of dollars for seemingly minimal injury claims. Taking a case to trial in some venues is like spinning a lottery wheel: you just cannot determine with any certainty where it will land. The following case illustrates the risk involved.

A 23-year-old male with a history of irritable bowel disease presented to a hospital emergency room with abdominal pain and vomiting for five days. The ER physician palpated a mass in the upper abdomen that felt like a colon filled with stool. The patient refused a rectal exam. A CT scan was ordered with contrast, but the patient vomited most of the contrast material. It was thought that this presentation was clinically most consistent with a gastric outlet obstruction, so our insured family practitioner was called to admit the patient.

The insured noted a tender mass in the left upper quadrant. The CT scan was reviewed with a radiologist, who noted fluid-filled bowel loops but nothing definitive. The insured’s admitting diagnosis was abdominal pain with nausea and vomiting—possible irritable bowel syndrome. On the day following admission, the insured requested a gastroenterology consult. The GI consultant agreed with the diagnosis of irritable bowel syndrome with functional abdominal pain syndrome, as the patient stated he had recently been under considerable psycho-social stress. X-rays continued to show numerous dilated bowel loops consistent with ileus, possibly from narcotics administered in the hospital. The standing order for Demerol was therefore discontinued.

A surgical consult was ordered by the family practitioner. Although the surgeon requested a GI series, the patient refused to swallow more than a few sips of contrast material and would not lie flat on his stomach for the films. The surgeon’s plan was to decompress the abdomen with a nasogastric tube and if the bowel obstruction did not resolve, he would take the patient to surgery for exploration. The patient did not improve and was taken to the operating room four days after admission to the hospital. At surgery, the small bowel was found to be hemorrhagic and gangrenous. A subtotal resection, including 60 inches of small bowel, and a jejunoileal anastomosis were performed. The patient now suffers from short-bowel syndrome. He eats a normal diet but is dependent on total parenteral nutrition (TPN) supplementation to maintain his weight.

Was the Family Practitioner’s Treatment Within the Standard of Care?

A defense gastroenterology expert felt that the CT scan was markedly abnormal. It had a swirling pattern in the tissues consistent with a torsion or intussusception of the small bowel. He felt that the gastroenterologist and the radiologist who read the scan were negligent in misreading it, but the insured, as a family practitioner, should not have been expected to read it himself and was correct in relying on the other specialists’ interpretation. A defense family practitioner expert stated that on admission, there was not sufficient evidence of bowel obstruction, and when the abdominal pain persisted, the insured correctly requested gastroenterology and surgical consultations. The family practitioner had pursued the problem, ordering laboratory tests and x-ray studies, which were nondiagnostic. The expert pointed out that the diagnosis of bowel obstruction is often missed on initial diagnosis. This does not mean that substandard care was provided—only that medicine is an inexact science and diagnoses can be difficult.

The plaintiff’s experts argued that this patient presented with classic small bowel obstruction, which should have been diagnosed earlier using an upper GI series on admission instead of the CT scan. It was argued that this patient initially had a viable bowel, but the several-day delay in diagnosis caused it to become ischemic and gangrenous, necessitating the extensive resection.

Should This Case Be Tried?

The radiologist and gastroenterologist were not named in this malpractice case. Only the insured family practitioner and the surgeon were defendants. The surgeon settled out of the case, leaving the insured as the sole defendant facing trial. At his deposition, the surgeon testified that he had chosen to delay surgery so that this patient could be hydrated and stabilized and so he could rule out narcotic ileus. This would seem to imply that the family practitioner was not primarily responsible for the delay.

An attempt was made to settle this case for a reasonable amount on behalf of the insured to avoid having to go to trial. This offer was rejected by the plaintiffs. Based on the expert reviews and the prediction that with TPN, this patient could live a relatively normal life, the decision was made, with the insured’s consent, to proceed to trial. The case took place in the insured’s hometown. Although this is known to be a risky venue in which to try cases, it was felt that there was a slight advantage to the insured as he is well known and highly thought of throughout the area.

Trial testimony took six days. The jury deliberated for eight hours before returning a multimillion dollar verdict against the insured. Surprisingly, a jury poll revealed that jury members were actually not sympathetic to this patient, as he was viewed as uncooperative with the treatment. The entire verdict was for future medical costs, with nothing allotted for past or future pain and suffering or loss of wages. Several jury members indicated that if they had liked this patient, he might have received even more.

While over 80 percent of claims taken to trial are still defended, and we remain committed to fighting nonmeritorious actions against our insured physicians, cases like this one make it a major risk to try even defensible claims, and they contribute to the mounting severity problem for nearly every specialty. The Doctors Company will continue to press for tort reform on both state and national levels. It is the only viable solution.