Episode 008: Blame Boomerangs Back

Speaker 1: You are listening to Your Practice Made Perfect. Support, protection and advice for practicing medical professionals, brought to you by SVMIC.

Brian: Hello and welcome to our latest episode of our podcast. My name is Brian Fortenberry, and today we're going to be looking at an interesting case, a closed claim that we're going to have the opportunity to discuss with a expert here and I am very appreciative to have with us today attorney Jim Howell. Jim, thanks for being here.

Jim: You're welcome, Brian. Good to be with you.

Brian: Same here, and Jim, for our listeners out there that are tuning in I think prior to even getting into the story behind this, why don't you tell them a little bit about yourself and your extensive time here at SVMIC?

Jim: Well, that's a real kind way to put it, Brian. I appreciate it. I'm close to completing my 38th year of service with State Volunteer. It's been pretty much my entire career. I began here in 1980 after receiving my law degree in 1978 so it really has been pretty much the entirety of my career.

Brian: Well, you have done quite a fine job here and I know many agree not only in this building but many physicians that you have assisted over those years. Prior to getting into our discussion, let's just take a look at the situation we're going to be talking about today. This claim involves an obese 45-year-old male who presented to his general surgeon with a ventral hernia. The history included multiple abdominal surgeries and known adhesive disease. The patient was admitted to the local hospital. It was a small facility that had no ICU or step-down unit, no on-site radiologist, and no OR staff after about 3:00 p.m. on a weekday.

The hernia repair was accomplished but with great difficulty due to the [lysis 00:02:08] of very extensive adhesions involving most of the small bowel. Recovery seemed largely unremarkable and the surgeon was proceeding with discharge on post-op day seven when the patient suddenly experienced severe abdominal pain at mid-day. The nursing staff observed a hard abdomen and absence of bowel sounds. The surgeon was in the OR and asked an emergency physician to examine the patient. That physician recommended transfer based on a tense and tender abdomen, absent bowel sounds and shallow breathing. Impression was acute abdomen, possible intestinal perforation.

The surgeon then ordered a CT scan. After reviewing the imaging and the preliminary radiology report, the surgeon concluded that a perforation was not demonstrated though free air was shown. He elected to keep the patient overnight. The patient seemed stable through the night but was observed to be unresponsive about 8:00 a.m. on post-op day eight. A code was called and air transport was initiated but the patient tragically died during transfer. Cause of death was suspected to be a bowel perforation.

Following the patient's death, the surgeon agreed to consult with the patient's next of kin and her attorney. Without seeking legal advice, the surgeon signed a formal statement that pinned blame in no uncertain terms on the radiologist who had interpreted the CT scan. In essence, the statement said that the surgeon's primary suspicion had been a bowel perforation but the CT results had allayed that concern by indicating that free air present in the abdomen was a normal amount of post-operative air not unexpected. According to the statement, because the radiologist had misled the surgeon by failing to raise the possibility of a perforation and immediate and life-saving transfer to a major medical center was not accomplished. A lawsuit ensued and perhaps unsurprisingly the surgeon was named as a defendant along with the radiologist, the emergency physician and the hospital.

Finger pointing among the defendants was abundant, and the plaintiffs' experts criticized everyone except the emergency physician who was dismissed from the case. Jim, this is quite an interesting case here, and it seems that most of the expert fire apparently was targeted at the surgeon who had signed this pre-suit statement that was brought into evidence. Why would a physician sign a formal statement like that without at least seeking legal advice on the front end, do you think?

Jim: Well, certainly the surgeon had the right to sign the statement. No one would argue that there was any impropriety in doing so. If the surgeon had happened to call us as his insurance company, we would have been very quick to tell him that he had the option to sign or not sign a statement of that nature.

The reality of it is, though, I think it was very imprudent for him to sign that statement for a couple of reasons. First of all, I think in reality the surgeon's hope was that by cooperating in that fashion, if a lawsuit were filed, he would not be involved, and that frankly was fairly naïve.

Brian: Yeah.

Jim: On his part. And secondly from a substantive standpoint, once the lawsuit was underway, and of course it did target the surgeon along with others but primarily the surgeon, the statement became sort of the chief piece of evidence that was brought forth by the plaintiffs' lawyer so it turned out to be a real albatross around his neck and a really unfortunate decision on his part.

Brian: Do you think that maybe he just was thinking he was doing the right thing there, or was it do you think really a thought process of if I do this, maybe then I just totally avoid being named?

Jim: I think it was a little bit of both. In all honesty, I suspect he had a fair measure of sympathy for a family in distress.

Brian: Sure.

Jim: As this family understandably was, and I think he wanted to help them if he could. At the same time, I do think that he probably concluded in his own mind that by becoming a member of the plaintiffs' team, if you will, the plaintiffs' lawyers' team, that he would at least enhance the chance that he might not be named in that lawsuit.

I think if you step back for a second, and look at it unemotionally and particularly when you consider that in our adversary system of justice, a plaintiff's lawyer in this position has his own ethical duty to follow the evidence where it takes him. Nothing wrong with that. In fact, it's mandated by the Rules of Ethics that he zealously represent his client in this situation, and it probably was not in the cards that a lawsuit would ever be filed realistically without naming the surgeon. So he just wasn't thinking through it, I think, in an objective way.

Brian: Also, it appeared that in the final report as it has to do with this case, that apparently the radiologist was looking at this apparently with a misunderstanding as to when the surgery had really occurred. Was it clear to whether or not that the surgeon had taken note of this himself in his review of the case?

Jim: Brian, he didn't take note of it and that was really a critical negative factor in the defense of the case as to the surgeon. I think perhaps the surgeon was thinking that that problem, that issue if you will, would fall more heavily on the radiologist, but the reality is the surgeon acknowledged in that pre-suit statement that you described that when he looked at the CT scan himself, he noted that there was free air, a leakage of air within the patient's abdomen. Post-operatively free air is just a very, very concerning medical sign.

So, the fact that the radiologist was confused about the timing of the surgery, and we'll talk a little more about that in a moment, that didn't take away from the surgeon's obligation. I mean, if the surgeon knew exactly when the surgery took place, the surgeon certainly should have known that at approximately seven days out from an operation to see any sign of free air is very concerning, and has to be treated as a medical emergency or a surgical emergency until proven otherwise.

The radiologist had his own problem there. He was relying it turns out on misinformation that had been given to him by a hospital employed radiology tech who had been under the impression that this was an immediately post-operative patient. So, when the radiologist did the initial read and did the preliminary radiology report, he clearly was under the impression that he was dealing with a free air sign that would have not been all that alarming within a few hours-

Brian: Sure.

Jim: Of an operation. That fact that the radiologist was under the impression that he was dealing with a matter of a few hours after the operation was simply not made clear in the preliminary report, although he did make it clear in the final report. Unfortunately, this case really was just a snowball of errors going downhill. The surgeon never either had time or perhaps didn't take the time to read the actual final radiology report which would have made it clear that the radiologist was laboring under a false assumption, that this was sort of an acute presentation of free air.

If the surgeon had tumbled onto that fact, I feel sure that he would have realized he needed to communicate further with the radiologist, and clear that question up, and probably the patient would have ended up with a timely transfer, if that had happened.

Brian: The unfortunate part of that is certainly not getting the timely transfer.

Jim: Right.

Brian: And it seems like in healthcare too, and in hospitals, there are constant guidelines, protocols, mechanisms in place to follow the procedure to make sure some things don't happen or what not. Was there no procedure in place here for the radiologist to see that the surgery had taken place several days prior to when he believed that the surgery had? Did they not have anything in place to catch that?

Jim: No, I don't think there was a procedure in place, and realistically I'm not sure that one could have been in place. I mean, this was simply a matter where the timing of the surgery admittedly was clear in the medical record itself, but I think looking at this from the standpoint of a radiologist, it was entirely understandable and justifiable, in my judgment, for the radiologist to take what seemed to be a clear piece of information from the radiology technology who was in-taking this patient into the radiology process, and rely on that. In the end, the radiologist didn't really face legal exposure here.

Brian: One of the things that I would think would be extremely beneficial in this scenario would be some direct communication between, say, the radiologist and the surgeon. So I guess that leads me to was there any direct communication between these two healthcare professionals?

Jim: There was not, and in all honesty it's probably not all that surprising in the way surgery interacts with radiology. A radiologist is caught up in the midst of a very busy day interpreting lots and lots of studies, and as a practical matter normally those studies are dealt with simply by making the reading and doing a radiology report. That simply is normally the way that information flows.

Now in this particular situation, if there had been any hint of doubt in the radiologist's mind about the timing of the surgery relative to the importance of the finding of the free air, I have no question that the radiologist would have picked up the phone and given the surgeon a call.

Brian: Sure.

Jim: And vice versa. If the surgeon had had any appreciation of the fact that there was confusion on the radiologist's part, I'm sure the surgeon would have picked up the phone and called. Unfortunately, in this particular fact pattern, we just have a situation that's sort of like ships passing in the night. Neither of them realized that there was any element of misinformation or confusion. Unfortunately for this patient, the patient was basically falling between the cracks.

Brian: You talked about had those ships not passed in the night, maybe the transfer would have happened a bit sooner, and maybe there would have been a different outcome. So, to that fact, do you think that the patient should have been moved to a larger hospital better equipped to handle this situation? When you look at that, did that come into play in your evaluation of this case at all?

Jim: Absolutely. I think that was really the key conclusion in terms of analyzing the case, and in terms of trying to assess as best we could how a jury was going to react to the case. I think when you look at the fact that there was clearly an appreciation of free air in a patient seven days out from this ventral hernia repair, combined with the fact that the patient at that time was in a fairly small town hospital that didn't have ICU capability, didn't have a nighttime emergency surgery coverage, I think all of that sort of combined to paint a fairly compelling picture that as soon as the free air was appreciated, this really should have been treated as a medical emergency and the patient needed to be transferred up the road to a tertiary care center that could better handle a possible emergency.

Brian: So Jim, how was this case ultimately handled?

Jim: The case was ultimately compromised without a trial. We concluded along with the surgeon involved that we felt like odds were that a jury was not going to be very accepting of this set of facts, and that they would be somewhat critical. We felt it was best to diffuse the case by way of a compromise.

Brian: Well, as we start to wrap up here, taking a look back at the facts of the case in our discussion, thinking about some main takeaways from this case for our listeners and potential policyholders that we have out there. I think one thing that kind of jumps off of the paper at me that I want you to add to is maybe it's always a really good idea as soon as you're concerned about a case, about a potential issue, is to contact a company like SVMIC to help walk you through that process, that you have confidence is going to have your best interest at heart, and help you through that process that can be confusing and bad.

What other things did you think that would be some main takeaways from this case?

Jim: Well, I think that would be the most significant. I mean, in this situation, unfortunately, what the surgeon unwittingly did was take a potential ally or friend in the person of the radiologist, and turn that radiologist immediately when the lawsuit was filed, into a fairly bitter enemy. When you have that type of dynamic as a lawsuit plays out, we call it jousting back-and-forth between healthcare professionals, that is never a beneficial thing for the defense.

So certainly an early call probably would have been a smart thing. If the physician had called, we would have looked at the options with that doctor. We would have pointed out that while he had every legal right to sign that statement or not sign the statement, completely up to him at his discretion, the better part of wisdom was probably not to make that statement front and center in the defense of the lawsuit. The doctor was always going to have to give a discovery deposition and was ultimately going to have to testify in court if the case went to a trial, but he needlessly complicated his defense by signing that statement at the outset.

Brian: Jim, this has been fascinating, informative, and I really appreciate your time coming in and having that discussion with us today.

Jim: You're welcome, Brian.

Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host Brian Fortenberry. Listen to more episodes, subscribe to the podcast, and find show notes at svmic.com/podcast. The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice as specific legal requirements may vary from state-to-state and change over time.