Episode 066: Microperforations, Macro Problems

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. Welcome to this episode of our podcast. My name is Brian Fortenberry. Today we're going to look at one of our closed claims and have a discussion and gain a lot of information that will be very valuable to our policyholders and our listeners. Joining me today to discuss this, we have Katy Smith and J. Baugh. Welcome guys.

Katy: Thanks, Brian.

J. Baugh: Thank you, Brian.

Brian: Before we get started, tell us a little bit about yourselves, about your time at SVMIC, and your background. Katy, let's start with you.

Katy: Well, I'm a lawyer. I'm licensed in Tennessee to practice in state and federal courts. I used to do that before I joined SVMIC, which was about 12 years now. I had the pleasure of representing our insureds if they were sued and now I'm helping them on this side.

Brian: That's awesome. It's hard to believe, 12 years.

Katy: 12 years.

Brian: It goes by fast, doesn't it?

Katy: It does.

Brian: J., tell us a little bit about yourself.

J. Baugh: Well, my undergraduate degree is in accounting. I became a CPA, and after that I decided to go to law school. Glutton for punishment.

Brian: I was going to say, what's wrong with you?

J. Baugh: Yeah, I know. I should have thought about that before I started, shouldn't I?

Brian: Yeah.

J. Baugh: And then I passed the bar exam. I've been an attorney and a CPA licensed in the state of Tennessee now for 20 plus years. I've been at State Volunteer for the last 18 years.

Brian: Well, a lot of experience in the room. This is going to be an interesting discussion. Let's start by talking about the claim itself, the case itself, to kind-of give ourselves a little bit of a background. Why don't you tell us what is this about? What does this case have to do with?

Katy: Well, today we're going to discuss a case involving the alleged wrongful death of a 42-year-old male patient. He presented to the ER complaining of lower abdominal pain, fever, nausea, diarrhea, anxiety, and severe distress. This particular patient had a four-to-five-year history of diverticulitis, which he had managed successfully to this point with diet.

J. Baugh: Dr. Long was the name of the ER physician who examined the patient. He ordered an x-ray and labs, and a CT was also ordered. It was initially read as showing no free air in the abdomen. And so, Dr. Long treated the patient with IV antibiotics and fluids.

Brian: In this case, Dr. Long ... J., did you say he's the ER physician?

J. Baugh: That's right.

Brian: What was his diagnosis, and was the patient admitted after he saw them in the ER?

J. Baugh: Well, he was diagnosed with acute diverticulitis, which is not surprising since he presented with a four-to-five-year history of having diverticulitis. He was also diagnosed as having localized peritonitis.

And so, Dr. Long decided that the patient needed to be admitted to the hospital. However, the on-call hospitalist was not available. And so, Dr. Long decided instead to call Dr. Ellis, who was another hospitalist. Now, Dr. Ellis was out of town that night. He wasn't on call, but Dr. Long called him anyway because he wasn't able to reach the on-call hospitalist.

And so, Dr. Ellis agreed to have the patient admitted in the late night/early morning hours. As I recall, it was around 3:00 AM when he decided to have the patient admitted to the hospital. And then Dr. Ellis planned to consult a surgeon the next morning.

Brian: Okay, so there was a consult that was recommended, correct?

J. Baugh: That's right. He was going to make the consult a few hours later in the early morning hours of the day. He was admitted around 3:00 AM, so he was planning to do a consult a little bit later that morning.

Brian: Later that morning, so I'm assuming that was done. How did that go?

Katy: That's the unfortunate thing, I think, about this case because the patient was found unresponsive on the floor overnight, wasn't able to be revived. The autopsy ultimately discovered that the patient had died of disease of the rectosigmoid colon with perforation, abscess formation, obstruction, peritonitis.

The CT that was taken the prior evening was later overread after the patient's death, and it noted a finding of free air, though, J., I think you said it was not much free air, a microperforation.

J. Baugh: That's right. The initial CT reading showed that there was no free air, but the overread showed that there was.

Brian: This is on the CT that was done the early morning hours once he came into the ER, is that correct?

J. Baugh: That's right. Just to set a timeline for you, the patient came in about 6:00 PM that evening.

Brian: The previous night.

J. Baugh: That's right. Dr. Long saw the patient and ordered the different tests that he ordered, ordered the CT scan, had that read, and then once that was read, he decided to have the patient admitted, and that's when he called Dr. Ellis to have that done.

That was about 3:00 in the morning. So you have a presentation around 6:00 in the evening, then you have the admission around 3:00 AM, and then he was found unresponsive at 7:30 AM. So back to your question about how the consult go, well, it didn't actually happen. The plan was to have a surgical consult, but the patient expired before that could be done.

Brian: When did the overread happen? Did that happen after the patient had passed away?

J. Baugh: Yes, that's right.

Brian: Oh, okay. So there was not a second overread done to where they could pick up the urgency of the consult or anything.

J. Baugh: That's right. This entire case happened fairly quickly when you think about it. The patient presents at 6:00 PM and he's found unresponsive at 7:30 AM, so you're talking about 12, 13 hours here. And then he was pronounced dead around 7:45 or 7:50 AM. It was a quick demise from the initial presentation.

Brian: And this was all due to a flare up of diverticulitis. This had no procedures involved, nothing like that is what I'm hearing, correct?

Katy: That's correct. He's obviously a pretty stable looking patient. He's also a young patient, 42 years old. He's obviously looking good in the ER, other than his complaint, and is stable and doing well at least for some period of time after he's admitted and transferred to the floor.

J. Baugh: Yeah, that's right. If Dr. Long knows that this patient has a history of diverticulitis and he sees evidence of that in the films that he read, that would make sense that that would be the logical conclusion he would come up with. This must be a flare up of diverticulitis, and so we'll get a surgical consult to take a look at the patient in the morning.

Brian: See, and that's what I was thinking because you were saying early on that he had suffered from, I guess, diverticulosis where it's not flaring up for years.

J. Baugh: Yeah, four to five years.

Brian: And so, it is highly likely that this patient understood what was going on. There may have, I guess, been a conversation between the ER physician and the patient because it's like, "Hey, this isn't new news, that we've been down this road before."

Do you think any type of, maybe, complacency on the part of the ER physician, or even the patient, may have had anything to do with this, of, "Hey, we've been down this road before. It's no big deal"?

J. Baugh: I don't think I would call it complacency. I would just say that the doctor's going down his differential. He begins with what is the most likely cause of what's going on here and that would be a flare up of the diverticulosis that he had. That's the most likely scenario that's going on with the patient.

I don't think that there's really any kind of complacency going on here because it happened so quickly. I mean, he really didn't have much of a chance to get to option number two on the differential because the patient expired so quickly.

Brian: Katy, is this normal? Is this type of situation common? This seems very uncommon to me. I guess that's what I'm asking.

Katy: I think, unfortunately, there are a number of cases that we see in our department where a patient kind of has a quick and short admission where he expires quickly after admission, and that's always difficult. It presents the perfect scenario for second-guessing the care, for second-guessing the decisions that were made.

But I think it's important to kind of go back to where the patient was when he was being seen by Dr. Long, when he was being transferred to the floor. He doesn't have an apparently surgical issue. He's clinically stable. He's got a problem, but it's not a problem that would send him rushing to the OR.

Brian: Certainly, given the initial impression of the CT read, right?

Katy: Right.

J. Baugh: That's right. And going back to what Katy said about the second-guessing that can happen, the plaintiff's attorney kept saying throughout this case that Dr. Long should have ordered an emergent surgical consult, that he shouldn't have waited to have Dr. Ellis to that for him later. You need to do surgery right now because of the presentation of the patient.

Brian: That was basically the allegation of wrongdoing, that he didn't get a consult quick enough?

J. Baugh: That's exactly right. Of course, what would've happened if Dr. Long had done what the plaintiff alleged he should have done, and that's get an earlier surgical consult, if that surgery had happened, we might still be where we are now. It's just that the plaintiff would've said, "Well, you acted too quickly. Why didn't you do more conservative treatment? Because you surgeons are always wanting to do surgery, you should try something else first."

Katy: Cut fast.

J. Baugh: That's right. Cut fast. "You got the knife. You're always wanting to ..."

We hear that from plaintiffs' attorneys. The benefit of the plaintiff's attorney in this case is no matter what happens, he can always second-guess it.

Brian: You're talking about the main allegation. We really haven't even gotten to the outcome of the case itself. What happened in this particular case?

J. Baugh: Well, the patient was married, had three children, ages 16, 12, and 5. His life expectancy was likely another 35 years, since he was 42 years old. He was also making an annual income of about $150,000.

The potential damages in this case were pretty high, which I assume is the reason the plaintiff's attorney took the case because you've got a loss of consortium for a wife, for three minor children. You've got this lost income. And so, it was probably an attractive case for the plaintiff's attorney to take.

Now, it has kind of an unusual road of litigation. If you look in our Sentinel newsletter, there's an article titled "The Long Road to Litigation." That's what this-

Brian: It's based on this. Okay.

J. Baugh: ... article is about. This is the long road to litigation. Let me just very briefly tell you what the litigation was about.

Brian: Okay.

J. Baugh: The suit was filed in 2008.

Brian: All right.

J. Baugh: Trial happened in 2011. On the second day of trial, the plaintiff nonsuited the case. Now, that's just a legal term that means it was voluntarily dropped.

Brian: Got you.

J. Baugh: In some states, in most states that we ride in, the plaintiff can refile the case either six months or a year later. That's true in the state where this case was tried. It was re-filed two months later. It went to a verdict in 2014, and the defendant won. It was a 12-0 verdict.

The judge then granted the plaintiff's motion for a new trial, set the order aside, and we had to do it all over again. It went to trial in 2017, and Dr. Long won again. We now have 24 out of 24 jurors saying that Dr. Long's care was appropriate.

Brian: Wow. Correct me if I'm wrong, that seems highly unusual that you would see a case that many times, Katy?

Katy: Yes. I mean, I'd say it's unusual. Certainly, nonsuits are not unusual. Unfortunately, they're not unusual even in the middle of a trial. Often, they'll happen earlier, but if a plaintiff hasn't nonsuited their case, they still have that option, which as I understand happened in this case. If their proof isn't going in very well, so they need to pause it, have a do-over-

J. Baugh: They get a do-over.

Katy: ... gather some better experts, some better proof.

J. Baugh: If it doesn't go well, they can take a nonsuit and they have either six months or one year, depending on the state, to refile the case. As Katy said, they get a do-over.

Katy: They did that here. What's interesting, the length of time, I think, is striking. Although, lawsuits are typically years long processes.

Brian: Katy, to me that is so important, and that can't be understated because I think a lot of people who haven't been involved in these before think the incident happened on today, and within six months I will get papers, and we'll be in court, and within a year we'll be done with this. It doesn't happen like that at all, does it?

Katy: No. I hear that frustration a lot from physicians. What about you, J.?

J. Baugh: Yeah, I do. They think that it'll be just a matter of months and the case will be resolved one way or the other. We see, on average, it's two, maybe three years for the average lawsuit to be tried.

Katy: Often longer.

J. Baugh: Now, some will be tried quicker than that. Yeah, some will take longer than that.

Katy: Some, yeah.

J. Baugh: This one took nine before it was eventually resolved.

Brian: So the timeline on this, do you know right off the top of your head when the incident occurred by chance?

J. Baugh: It was early in 2008. The lawsuit was filed in the latter part of 2008.

Brian: We're talking almost a year from the period of time that the incident happened until it was reported and the lawsuit commenced. And then the ultimate outcome, I think, we said was 2014, right?

J. Baugh: It's actually 2017-

Brian: 2017.

J. Baugh: ... the ultimate outcome.

Katy: The second trial, that's right.

J. Baugh: The first trial was '14, the second trial was '17, yeah. So nine years.

Brian: That is the important part for physicians to understand.

Katy: It's a marathon. It's not a sprint. I think you have to emotionally prepare yourself for that because it is exhausting and there are periods of intense activity, periods of quiet, but the physician has to just be prepared to live with this for a little while and to learn how to manage the stress of living with it for the time. Now, for this doctor, having to endure, really, two and a half trials. Well, that is unusual.

J. Baugh: Yeah, that's a lot of stamina for this physician to have to endure. Kudos to Dr. Long for being able to withstand not just one trial. As Katy said, it's really two and a half because Dr. Long had to get prepared for that first trial even though it got nonsuited in the second day. So in essence, Dr. Long had to prepare for three trials.

Katy: I think what's important, I think, and what makes our company different than a lot, Dr. Long never wavered in his desire to defend his care. I mean, through three trials, basically. We were willing to stand there with him, to support him-

J. Baugh: That's right.

Katy: ... to defend the case through the trials. Man, he hung on and he got his second defense verdict that stuck for him.

Brian: And to SVMIC's credit, I believe, is the fact that standing by the position is what SVMIC does.

J. Baugh: Yes. Oftentimes I have told physicians that they will hear attorneys tell plaintiffs, you deserve your day in court. And I tell the doctors, so do you. You deserve your day in court. You ought to be able to go into court and say, "This is what I did and this is why I did it. Here are experts that will support me and will tell you that I made the right decision even though the outcome was obviously not what we wanted."

Brian: We've talked about roughly 24 jurors said there was nothing done wrong here, but I'm going to ask this anyway because hindsight is always 20/20, right? What could Dr. Long potentially have done differently in this case, if anything at all?

J. Baugh: Well, our defense was that he could not have done anything differently than he did. We had a surgeon who is an expert that testified on behalf of Dr. Long that said there wasn't anything else that could've been done.

Now, the plaintiff kept saying, "You should have done surgery earlier or you should have ordered," I should say, "surgery earlier than you did."

But we had an expert that said that wasn't the case, that there was no indication to take this patient to surgery early. There are obviously risks every time you do surgery, so you don't want to enter into that lightly.

If you listen to the plaintiff's side of the case, yeah, there was something else you could've done. You could've ordered an emergent surgery consult, but the proof showed that that was not the case, that Dr. Long really could not have done anything else.

Katy: Right, this is just one of those cases where there's just an unfortunate outcome for the patient. Everybody hates that. Certainly the doctors do, definitely the patients, and their families. But the care was appropriate and that's why the doctor wanted to defend it. We were here with him to defend him all the way.

J. Baugh: That's right.

Brian: It sounds like, even based on what the expert witness said, had the surgery been done earlier, the outcome may have been exactly the same.

J. Baugh: That's true. The patient may not have survived the surgery. If the patient was as sick as the patient was, without the surgery being done, then the patient probably would not have survived the surgery.

Brian: So as we begin to wrap up, for our policyholders and listeners, what would you say are some of the main takeaways here in this case? How could we apply what happened in this case or the circumstances around it or even the litigation, how it went, what are some things that we can really give our policyholders here?

J. Baugh: Well, I think the main takeaway from this particular case, with it having started in 2008 and not finished until 2017, is what we talked about a little bit earlier, and that is you just have to have the stamina sometimes to endure the legal process. It always moves slower than physicians think it should. It usually moves slower than attorneys think it should, but there are a lot of things that are just outside everyone's control.

I think the main takeaway from this particular case is that the doctor practiced medicine within the standard of care and we had expert support to prove that the doctor did the right thing. State Volunteer was willing to stand by the doctor's side, even if it took nine years of litigation, in order for the doctor to have his day in court to prove that he practiced good medicine.

Brian: Guys, thank you so much for being here. Katy, J., thanks for your time and all the information today.

Katy: Thanks, Brian.

J. Baugh: You're welcome.

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. All names in the case have been changed to protect privacy.