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Case of the month: Medical malpractice liability in a DVT case
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In previous articles, we have discussed the complex issue of assessing malpractice liability for physician judgment. Courts have traditionally been deferential to the exercise of individual physician judgment, when such judgment is asserted as a defense in medical malpractice litigation.
The courts first addressed this issue in the 1898 New York case of Pike v. Honsinger, in which an extremity fracture was treated with a cast and compartment syndrome resulted, leading to a devastating outcome. The court held, “the rule requiring the physician to use his best judgment does not hold him liable for a mere error of judgment, provided he does what he thinks is best after careful examination.” The language in Pike has been controversial in the years following the ruling, as it suggests a physician or surgeon is immune from liability when using his or her best judgment, even if that judgment is negligent. This so-called “judgment defense” is used commonly by defense counsel in medical malpractice cases.
The New York Court of Appeals clarified and limited the Pike doctrine in the 1981 case of Topel v. Long Island Jewish Medical Center, in which a psychiatrist was sued for only recommending observation in 15-minute intervals for a hospitalized patient with suicidal tendencies. The basis for the estate’s claim was the psychiatrist was required to order constant observation. Even though the patient’s estate presented expert evidence that constant observation was required under the prevailing standard of care, the trial court dismissed the case, relying on the “judgment immunity,” stating the election between constant monitoring and monitoring in 15-minute intervals “... was a matter of professional judgment...” for which the psychiatrist could not be held liable. The Topel ruling is significant as it partially overturned Pike by stating a physician or surgeon could not be held liable for a mere error of judgment provided he does what a reasonable and prudent physician would have done after careful examination.
The court stated, “While the line between medical judgment and deviation from good medical practice is not easy to draw, we conclude that more is required to make out a prima facie case against a physician than was presented by plaintiff’s expert testimony.” The court further stated, “Moreover, when the judgment exercised is outside the permissible range, however good his intentions may have been, a physician cannot thereby be rendered free from liability.” Finally, the court stated, “[Pike] . . . does make reference to immunity, ‘for a pure error of judgment,’ but it does so in two pages which make it crystal clear that, like an ‘honest opinion,’ or ‘good intentions,’ this is only the beginning, not the end, of the inquiry on which liability must come to rest.”
B. Sonny Bal
This case of the month involves an orthopedic surgeon who asserted he was using not only his best judgment, but the best judgment of a reasonable and prudent orthopedic surgeon. The fact pattern presents a useful exercise in thinking about physician judgment as a defense and the limits suggested by the Topel court.
Case facts
The plaintiff was a 38-year-old former athlete who played football and baseball in high school and college. Prior to his death, the plaintiff was the high school football and baseball coach in his local Michigan community. He was 5’8” and 128 lbs. He was visiting Lakeland, Fla., to watch the Detroit Tigers during spring training.
While in Lakeland, he severely sprained his ankle on a Saturday. He was seen in an emergency room (ER), and his ankle was placed in a wrap. The next day, he flew home to Michigan and saw his orthopedic surgeon early Monday morning. After the orthopedic surgeon performed a physical examination, took a history and obtained X-rays, it was decided to cast the ankle. Because the patient was a former athlete, he had a high threshold for pain; but by Monday evening, he was in severe pain that did not diminish during the course of the week.
Late in the afternoon on the Friday of that week, the plaintiff’s wife called the orthopedic surgeon and described her husband’s pain. The orthopedic surgeon advised that if her husband was not feeling better in the morning, she should take him to an ER. The pain did not recede, and the patient was seen in the ER the next morning by an orthopedic resident. The resident split the cast and found slight pitting edema, but nothing else. He recast the extremity, and the patient did well until the next day, when the pain returned. His wife called the orthopedic surgeon that Sunday evening, who made an appointment to see the patient in his office at 10 a.m.
The surgeon split the cast, examined the leg and found slight pitting edema. Furthermore, he performed a Homan’s test, which was negative, and documented this finding. The patient went home and, at about 4 p.m., experienced severe chest pain and shortness of breath. He collapsed, dead from a saddle embolus as diagnosed on autopsy.
Case analysis
In this case, the plaintiff emphasized the performance of the Homan’s test as the basis for the claim that the orthopedic surgeon’s judgment in not seeking immediate consultation and referral for further work-up was below the standard of care. The plaintiff’s attorney noted the only reason the orthopedic surgeon would perform a Homan’s test was if he were considering a deep venous thrombosis (DVT) in his differential diagnosis. The plaintiff’s attorney also argued the Homan’s test is unreliable, and the negligence in this case was a combination of the orthopedic surgeon’s awareness of the potential life-threatening vascular condition and reliance on an unreliable test to rule that out. In other words, the fact pattern itself was sufficient to infer awareness of risk and insufficient response to that risk.
Lawrence H. Brenner
The defense argued the following: pain is often associated with the type of injury suffered by the patient; the orthopedic surgeon was diligent in following through on the patient’s complaint; the surgeon relied on the clinical appearance of the patient’s leg; and the orthopedic surgeon should be immune from liability as his professional judgment was no different than a reasonable and prudent orthopedic surgeon. In other words, the fact pattern was clear enough that the surgeon recognized the risk, and although the Homan’s test may be unreliable, the overall judgment of the physician, based on careful history and physical examination was such that he believed further work-up for DVT was unnecessary.
What do you think?
- Was the plaintiff’s emphasis on the Homan’s test an important liability consideration in this case?
- Was the judgment to send the patient home below the standard of care?
- If you had to set a standard for differentiating negligence from nonnegligent judgment decisions, what would be that standard?
- What is the best defense argument you can think of in this case? Conversely, what is the best plaintiff’s argument?
- For more information:
- B. Sonny Bal, MD, JD, MBA; and Lawrence H. Brenner, JD, are partners in the law firm of BalBrenner/Orthopedic Law Center and are the exclusive providers of loss prevention, risk management and quality improvement services for the Orthopedic Physician’s Insurance Company. Brenner can be reached at lbrenner@balbrenner.com.
Disclosures: Bal and Brenner report no relevant financial disclosures.