Are you following the rules you’ve set for supervising midlevels?

By Ann W. Latner, JD
If you’re not, you could land in court. These doctors found that out the hard way.
Dr. L and Dr. J weren’t always on site in their small family practice; at times their physician assistant, Ms. A, was the only clinician available. Such was the case when Mrs. Z came to see Dr. L, her regular physician, and was treated by Ms. A instead. It would turn out to be a fateful visit.
The patient, in her mid-50s, presented with severe headaches and nasal discharge. Ms. A prescribed intranasal steroids to treat the symptoms and advised Mrs. Z to return in a week for additional tests.
Five days later, Mrs. Z began exhibiting neurologic symptoms, including facial drooping and disorientation. An emergency CT scan at a local hospital revealed a brain abscess caused by a sinus infection. Mrs. Z was flown to another hospital for emergency surgery to remove a portion of her skull. But after the operation, she experienced respiratory distress and had to be put on a ventilator. More surgery followed, and part of Mrs. Z’s skull was eventually replaced with plastic.
The ordeal left Mrs. Z with serious, permanent impairment. She lost all peripheral vision on her left side and suffered nerve damage to her right leg. Because of balance problems, she had to undergo rehabilitation to learn how to walk again. She was unable to regulate her emotions, manage complex cognitive thinking, or perform many functions of daily living.
Mrs. Z and her husband believed the entire nightmare could have been prevented had she received adequate care from Ms. A at the outset. A plaintiff’s attorney agreed and filed a malpractice suit on their behalf against Ms. A and her two supervising physicians, Dr. L and Dr. J.
The case began with the exchange of relevant documents. During this “discovery phase,” the doctors gave copies of their practice agreement and similar papers to the plaintiff’s attorney. Next, depositions were taken from all the parties and experts. Subsequent negotiations to settle out of court failed. The trial lasted eight days. The plaintiff’s experts testified that Ms. A should have recognized Mrs. Z’s symptoms as a sinus infection and prescribed antibiotics. The steroids served only to mask and exacerbate the underlying problem, they said.
The plaintiff’s attorney also submitted the physicians’ practice agreement, which specified that either Dr. L or Dr. J would see every patient Ms. A treated. The doctors should be held liable for Mrs. Z’s condition, the lawyer argued, because they failed to follow their own rules.
Experts for the defense testified that headache and runny nose could indicate various conditions, not all of which require antibiotics, and that Ms. A acted properly in suggesting tests if Mrs. Z didn’t improve in a week. They also contended that there was no way to reasonably anticipate a brain abscess based on Mrs. Z’s symptoms when Ms. A examined her. After deliberating for five hours, the jury awarded the plaintiffs $3 million.
Legal background
Failure to diagnose accounts for about 40% of all medical malpractice lawsuits. In this case, the jury found that Ms. A’s failure led to Mrs. Z’s impairment and the financial burdens of extensive medical and rehabilitation costs.
However, in the absence of additional symptoms, headache and runny nose can be signs of other conditions. According to Ms. A’s clinical notes, Mrs. Z did not have a fever—a typical sign of an infection—nor did she complain of eye or cheek pain, common symptoms of sinusitis. Even if Ms. A had recognized Mrs. Z’s condition as a sinus infection, was she wrong in her treatment? The plaintiff’s attorney made much of the fact that Ms. A had not prescribed antibiotics, but would that have been good medicine?
The defense maintained that Ms. A’s “watch and wait” attitude was appropriate. If the patient’s condition didn’t improve, she was to return in a week for tests. The likelihood of a sinus infection spreading to the brain in that amount of time was so small that it was unreasonable to expect Ms. A to anticipate it.
The defense also refuted the plaintiff’s attorney’s claim that had Mrs. Z also been seen by one of the two supervising physicians, everything would have turned out differently. Both doctors completely stood behind their physician assistant, reiterating several times that they believed she had treated Mrs. Z adequately and appropriately.
In their turn, the two supervising physicians were found liable because they violated their own practice protocol, which stated that they would see every patient treated by their physician assistant. This protocol goes far beyond the supervision required by any state.
Cases such as this usually settle before trial. Insurance companies in particular will seek to resolve cases out of court if possible. In this case, the insurance carrier, like the physicians, believed in Ms. A’s professionalism as a physician assistant and viewed Mrs. Z’s situation as an unavoidable tragedy.