Medical Malpractice Bulletin – October, 2016

October, 2016

In this issue:

  • Panelists invited: Are non-disclosure clauses medically or legally ethical?
  • Guest Perspective: Grief lessened by disclosure of medical error
  • American Association of Legal Nurse Consultants (AALNC) national conference, Portland, OR, April, 2017
  • Spinal Epidural Abscess talk to AALNC
  • Dr. Peter Rosen censured for breach of expert witness guidelines

Panelists invited: Are non-disclosure clauses medically or legally ethical?
I will be moderating a panel discussion at the national conference of the American Association of Legal Nurse Consultants in Portland, OR, on Saturday, April 8, 2017. The topic is “Medical and legal ethics of non-disclosure clauses in med mal settlements.” The goal of the discussion is to find ways to improve patient safety through greater transparency in pre-trial settlements. Panelists will include a plaintiff attorney, a defense attorney, a med mal insurance representative, a legal nurse consultant and myself. Whether you are a plaintiff or defense attorney, please contact me if you would like more information or a chance to participate.


Perspective: Disclosure important when grieving medical error
When a family is dealing with an unexpected passing that could have been prevented, grief can be challenging, especially if there are no answers, justice, or “closure.” People can become stuck in the anger and depression stages of grief and have difficulty moving forward with their lives. They are forever back to that moment in time when their loved one was inexplicably taken. Relationships with family members and friends can splinter. Some folks are able to move forward, others cannot. “Why can’t Mom just let it go?” can become fighting words. People faced with such grief want answers, accountability, and the knowledge that someone or something learned from the tragedy and are doing everything possible to make sure it never happens again — and these sad souls may never reach this place. Continue reading ->

Spinal epidural abscess
Prior to the panel discussion at the AALNC conference above, I am speaking on “Spinal epidural abscess: A diagnosis too often missed,” and attempting to narrow down the standard of care.

Society to Improve Diagnosis in Medicine (SIDM)
I will again be attending the SIDM national conference on Diagnostic Error in Medicine November 6-8, 2016. This is an amazing group of people from all sides of the issue working to improve patient safety by reducing medical error.

Dr. Peter Rosen censured by ACEP
The American College of Emergency Physicians on June 22, 2016, issued a public letter of censure to Dr. Peter Rosen, a well-known emergency physician, textbook editor and medical leader, for providing testimony that was “false, misleading or without medical foundation” and was biased by hindsight. The case involved a 15 yo Georgia youth was evaluated for pleuritic chest pain 1 week post knee arthroscopy and died of a pulmonary embolus (PE) 2 weeks later. The case had been dismissed by both the trial court and appellate court as not meeting the “gross negligence” standard for medical malpractice in Georgia. Dr. Rosen was testifying on behalf of the plaintiff parents that the Georgia Supreme Court should allow the case to proceed under that standard. As a result of Dr. Rosen’s testimony, the Georgia Supreme Court reversed the appeals court and ruled that a jury would have to decide the issue. A 9 point complaint was filed against Dr. Rosen by another ACEP member and ACEP censured him on 2 of the 9 points raised. The matter was covered in EP Monthly. Here is more on those 2 points:

The ACEP Ethics Committee found that Dr. Rosen testified that it was below the standard of care for the defendant physician to obtain an EKG, callng it “useless care,” while at the same time saying that a “Q3T3 pattern” on an EKG is “a classic sign” of a PE.  He also testified that a d-dimer is not elevated in post surgical patients, and that it was “gross negligence” for the defendant physician not to order one, claiming that had a d-dimer been done and found to be elevated, PE would have been diagnosed. The Committee found this to be false and misleading testimony without medical foundation in that:

  1. an EKG is absolutely within the standard of care in patients with chest pain and
  2. Dr. Rosen contradicted himself when in describing EKG findings that would support a diagnosis of PE.
  3. A d-dimer is in fact typically elevated in post-surgical patients, whether or not the patient has a PE.

The committee further found that Dr. Rosen’s testimony:

  • was biased by hindsight, rather than basing his testimony on the “state of medical knowledge at the time of the event,”
  • was an untrue and  biased exaggeration to support the plaintiff’s claim that the defendant physician’s care was “egregious” and “less than careless” in that he had provided no care or useless care, which is required to fulfill the requirements of the “gross negligence” standard of Georgia law, and
  • confused “maloccurrence with malpractice… in violation of [ACEP’s] Code of Ethics for Emergency Physicians.”

Finally, the ethics committee noted that

  • the PE was not known until 2 weeks after the defendant’s care,
  • the record showed that the patient’s vital signs and oxygenation were normal,
  • a chest x-ray and EKG were done and showed nothing that confirmed a PE,
  • the patient had a low pre-test probability for PE,
  • the defendant provided a well-documented H & P, and
  • treatment of pain and re-evaluation of the patient clearly did not meet the law’s definition of “gross negligence.”

[Editor’s Note: There being no apparent activity for this case since the finding of the Georgia Supreme Court, it is likely that the case has been dropped. / CP]



Leave a Comment