Personal Application
10/1/2020 Legal Aspects of Health Care Administration
https://openpage-ebooks.jblearning.com/wr/viewer.html?skipLastRead=true&oneTimePasscode=ST-9fea61d6-d406-435a-9f0a-1663fe4ad042&language=en-US#boo… 1/6
Premier Access for Legal Aspects of Health Care Administration, 13e (Kippenhan - CFC993) ISBN 9781284239850
Chapter 10 Medical Staff Organization and Malpractice Treatment
▸ TREATMENT This section focuses on negligence cases that relate to medical treatment and
various legal and ethical issues that healthcare professionals encounter when
treating patients. Medical treatment is the attempt to restore the patient to health following a diagnosis. It is the application of various remedies and medical
techniques, including the use of medications for the purpose of treating an illness or
trauma. Treatment can be active treatment, directed immediately to the cure of the disease or injury; causal treatment, directed against the cause of a disease; conservative treatment, designed to avoid radical medical therapeutic measures or operative procedures; expectant treatment, directed toward relief of untoward
symptoms but leaving cure of the disease to natural forces; palliative treatment,
designed to relieve pain and distress with no attempt to cure;
preventive/prophylactic treatment, aimed at the prevention of disease and illness; specific treatment, targeted specifically at the disease being treated; supportive treatment, directed mainly to sustaining the strength of the patient; or symptomatic treatment, meant to relieve symptoms without effecting a cure (i.e., intended to address the symptoms of an illness but not its underlying cause, as in scleroderma,
lupus, or multiple sclerosis, for example).
Medical practice guidelines are evidence-based best practices that are developed to
assist physicians in the diagnosis and treatment of their patients. It should be
remembered that best practices are not ironclad rules. Skillful medical judgment
demands that the physician determine how to use best practices and interpret the
information.
Choice of Treatment There can be two schools of thought regarding which treatment would be in the best interest of the patient. The potential for liability affects the choice of treatment
a physician will follow with his or her patient. Use of unprecedented procedures that
10/1/2020 Legal Aspects of Health Care Administration
https://openpage-ebooks.jblearning.com/wr/viewer.html?skipLastRead=true&oneTimePasscode=ST-9fea61d6-d406-435a-9f0a-1663fe4ad042&language=en-US#boo… 2/6
create an untoward result may cause a physician to be found negligent even though
due care was followed. A physician will not be held liable for exercising his or her
judgment in applying a course of treatment supported by a reputable and respected
body of medical experts even if another body of expert medical opinion would favor
a different course of treatment. The two schools of thought doctrine is only applicable in medical malpractice cases in which there is more than one method of
accepted treatment for a patient’s disease or injury. Under this doctrine, a physician
will not be liable for medical malpractice if he or she follows a course of treatment
supported by reputable, respected, and reasonable medical experts.
A physician’s efforts do not constitute negligence simply because they were
unsuccessful in a particular case. A physician cannot be required to guarantee the
results of his or her treatment. The mere fact that an adverse result may occur
following treatment is not in and of itself evidence of professional negligence.
Selecting the Wrong Treatment Although there can be two schools of thought on how to treat a patient, the failure
of an attending physician to carefully recognize recommendations of consulting
physicians, who determine a different diagnosis and recommend a different course
of treatment in a particular case, can result in liability for damages suffered by the
patient. That was the case in Martin v. East Jefferson General Hospital in which the
attending physician continued to treat the patient for a viral infection despite three
other physicians’ diagnoses of lupus and their recommendations that the attending
physician treat the patient for collagen vascular disease.
The trial court found that lupus had been more probable than not the cause of the
patient’s death, and that her chances of recovery had been destroyed by the
physician’s failure to rule out that diagnosis. Damages totaling $150,000 were
awarded to the plaintiff.
If a consulting physician has suggested a diagnosis with which the treating physician
does not agree, it would be prudent to consider obtaining the opinion of a second
consultant who could either confirm or disprove the first consultant’s theory. Failure
to diagnose and properly treat a suspected illness is an open door to liability.
Delay in Treatment
43
10/1/2020 Legal Aspects of Health Care Administration
https://openpage-ebooks.jblearning.com/wr/viewer.html?skipLastRead=true&oneTimePasscode=ST-9fea61d6-d406-435a-9f0a-1663fe4ad042&language=en-US#boo… 3/6
A physician may be liable for failing to respond promptly if it can be established that
such inaction caused a patient’s death. A patient afflicted with lung cancer was
awarded damages in Blackmon v. Langley because of the failure of the examining
physician to inform the patient in a timely manner that a chest X-ray showed a
lesion in his lung. The lesion eventually was diagnosed as cancerous. The physician
contended that because the evidence showed the patient had less than a 50%
chance of survival at the time of the alleged negligence, he could not be the
proximate cause of injury. The Arkansas Supreme Court found that the jury was
properly entitled to determine that the patient suffered and lost more than would
have been the case had he been notified promptly of the lesion.
Untimely Cesarean Section The attending physician in Jackson v. Huang was negligent in failing to perform a
timely cesarean section. The attending physician applied too much traction when he
was faced with shoulder dystocia, a situation in which a baby’s shoulder hangs
under the pubic bone, arresting the progress of the infant through the birth canal.
As a result, the infant suffered permanent injury to the brachial plexus nerves of his
right shoulder and arm. On appeal of this case, no error was found in the trial
court’s finding of fact when such finding was supported by testimony of the
plaintiff’s expert witness. The trial judge accepted the testimony of Dr. Forte, the
expert witness, who testified that the defendant possessed the necessary skill and
knowledge relevant to the practice of obstetrics and gynecology. The defendant,
because of prolonged labor and weight of the baby, should have anticipated the
possibility of shoulder dystocia and performed a timely cesarean section.
Failure to Treat Known Condition
44
45
46
LAB RESULTS BURIED IN FILES
When a woman has a pelvic exam, she expects her doctor to let her know if there’s a problem. But that didn’t happen for Charlene Hutchens in 2002 or in 2003. It wasn’t until 2004 that she learned she had advanced cervical cancer.
—Carol Gentry, Health News Florida, June 5, 2010.
10/1/2020 Legal Aspects of Health Care Administration
https://openpage-ebooks.jblearning.com/wr/viewer.html?skipLastRead=true&oneTimePasscode=ST-9fea61d6-d406-435a-9f0a-1663fe4ad042&language=en-US#boo… 4/6
A medical malpractice action was filed against the physician in Modaber v. Kelley
for personal injuries and mental anguish caused by the stillbirth of a child. The
circuit court entered judgment on a jury verdict against the obstetrician, and an
appeal was taken. The Virginia Supreme Court held that the evidence was sufficient
to support a finding that the obstetrician’s conduct during the patient’s pregnancy
caused direct injury to the patient. Evidence at trial showed that the physician failed
to treat the mother’s known condition of toxemia, including the development of high
blood pressure and the premature separation of the placenta from the uterine wall,
and that the physician thereafter failed to respond in a timely fashion when the
mother went into premature labor. The court also held that injury to the unborn
child constituted injury to the mother and that she could recover for the physical
injury and mental anguish associated with the stillbirth. The court found that the
award of $750,000 in compensatory damages was not excessive.
Failure to Treat Evolving Emergency The Bureau of Professional Medical Conduct (BPMC), in Bell v. New York State Department of Health, upon investigation of a complaint charged that the
physician failed to properly treat and respond to his patient’s evolving emergency
cardiac condition despite symptoms and circumstances indicating the need for
immediate hospitalization. The physician denied the allegations, and the State Board
for Professional Medical Conduct (committee) conducted a hearing.
When the patient visited the physician in September 1994, he was suffering from
high blood pressure and taking medication for that condition. From 1994 to 1996,
the patient was treated for various medical conditions, including high cholesterol
and hypertension. On May 29, 1997, the patient visited the physician complaining of
chest pains, anxiety panic attacks, and shortness of breath. During that visit, the
physician performed an electrocardiogram (ECG), ordered chest X-rays, and referred
the patient to a cardiac specialist for consultation. The physician also ordered a test
for cardiac enzymes; however, the results were not available for several days. The
physician prescribed asthma medication and sent the patient home. The next day,
the physician attempted to call the patient to inquire about his condition but was
unable to reach him.
Less than a week later, on June 2, 1997, the patient returned to the physician’s office
complaining of continued chest pain. At that time, the physician arranged a visit with
the cardiologist for the same day. The cardiologist reviewed the patient’s medical
47
48
10/1/2020 Legal Aspects of Health Care Administration
https://openpage-ebooks.jblearning.com/wr/viewer.html?skipLastRead=true&oneTimePasscode=ST-9fea61d6-d406-435a-9f0a-1663fe4ad042&language=en-US#boo… 5/6
history; performed an ECG; reviewed the May 29, 1997, ECG; and concluded that the
patient had a myocardial infarction followed by postinfarction angina. The patient
was immediately sent to the hospital.
The physician was not present at the hearing and did not call any witnesses to rebut
BPMC’s expert witness. Expert opinion revealed that the physician’s response to the
patient’s symptoms on May 29, 1997, and June 2, 1997, failed to meet medically
acceptable standards of care. On February 21, 2001, the committee sustained the
charge of negligence.
The physician’s license was suspended for 2 years; however, the suspension was
stayed, and the physician was placed on probation. On appeal, the Supreme Court
of New York found that given the serious nature of the patient’s complaints and
symptoms and the potential consequences, the committee’s conclusions were found
by the court to be supported by substantial evidence. According to Greenburg (one
of the defendants in the case), the physician’s course of conduct in performing an
ECG, ordering a cardiac enzyme test, and referring the patient to a cardiologist
demonstrated that the physician suspected that the patient was experiencing
cardiac problems. However, given the patient’s symptoms and history, it was
Greenburg’s opinion that the physician failed to adhere to medically acceptable
standards of treatment by failing to obtain the results of the cardiac enzyme test
expeditiously and not referring the patient to an emergency department
immediately.
Failure to Respond to Emergency Calls Physicians on call in an emergency department are expected to respond to requests
for emergency assistance when such is considered necessary. Failure to respond is
grounds for negligence should a patient suffer injury as a result of a physician’s
failure to respond.
Issues of fact in Dillon v. Silver precluded summary dismissal of an action charging
that a woman’s death from complications of an ectopic pregnancy occurred because
of a gynecologist’s refusal to treat her despite a request for aid by a hospital
emergency department physician. Although the gynecologist contended that no
physician–patient relationship had ever arisen, the hospital bylaws not only
mandated that the physician accept all patients referred to him, but also stated that
the emergency department physician had authority to decide which service
49
10/1/2020 Legal Aspects of Health Care Administration
https://openpage-ebooks.jblearning.com/wr/viewer.html?skipLastRead=true&oneTimePasscode=ST-9fea61d6-d406-435a-9f0a-1663fe4ad042&language=en-US#boo… 6/6
physician should be called and required the service physician to respond to such a
call.
Medication Errors Thousands of brand name and generic drugs in use have led to an increase in
medication errors. Such errors are a leading cause of patient injuries. Physicians
should encourage the limited and judicious use of all medications and periodically
document the reason for their continuation. They should be alert to any
contraindications and incompatibilities among prescription, over-the-counter drugs,
and herbal supplements. The negligent administration of medications is often a
result of errors, such as the wrong medication, the wrong patient, the wrong dosage,
and the wrong route.
Wrong Dosage
Expert testimony in Leal v. Simon, a medical malpractice action, supported the
jury’s determination that the physician had been negligent when he reduced the
dosage of a resident’s psychotropic medication, Haldol. The resident, a 36-year-old
man who had been institutionalized his entire life, was a resident in an
intermediate-care facility. The drug was used for controlling the resident’s self-
abusive behavior. Expert medical testimony showed that the physician failed to
familiarize himself with the resident’s history, failed to secure the resident’s
complete medical records, and failed to wean the resident slowly off the medication.
Abuse in Prescribing Medications The board of regents in Moyo v. Ambach determined that a physician prescribed
methaqualone fraudulently and with gross negligence to 20 patients. The board of
regents found that the physician did not prescribe methaqualone in good faith or
for sound medical reasons. His abuse in prescribing controlled substances
constituted the fraudulent practice of medicine. Expert testimony established that it
was common knowledge
50
51