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Chapter 10 Medical Staff Organization and Malpractice Discharge and Follow-Up Care

▸ DISCHARGE AND FOLLOW-UP CARE The premature discharge of a patient is risky business. The intent of discharging

patients more expeditiously is often a result of a need to reduce costs. As pointed

out by Dr. Nelson, an obstetrician and board member of the American Medical

Association, such decisions “should be based on medical factors and ought not be

relegated to bean counters.”

As noted in Doan v. Griffith, discharge instructions must be clear and complete. In

this case, an accident victim was admitted to the hospital with serious injuries,

including multiple fractures of his facial bones. The patient contended that the

physician was negligent in not advising him at the time of discharge that his facial

bones needed to be realigned by a specialist before the bones became fused. As a

result, his face became disfigured. Expert testimony demonstrated that the

customary medical treatment for the patient’s injuries would have been to realign

his fractured bones surgically as soon as the swelling subsided and that such

treatment would have restored the normal contour of his face. The appellate court

held that the jury reasonably could have found that the physician failed to provide

timely advice to the patient regarding his need for further medical treatment and

that such failure was the proximate cause of the patient’s condition.

Untimely Discharge Barbara Jupiter, executrix of the estate of Warren Jupiter, brought an action against

the Department of Veterans Affairs (VA) in Jupiter v. U.S. The suit alleged that Mr.

Jupiter sustained personal injury, pain, and suffering prior to his death, which was

allegedly caused by the negligence of the defendant’s agents and employees while

he was a patient at the VA hospital. A bench trial was conducted over a period of 7

days.

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Mr. Jupiter had elected to undergo bariatric surgery for weight loss at the VA

hospital. One step in the operation was claimed to be a departure from the

accepted practice of performing bariatric surgery, and it was this step that lead to an

infection, and ultimately, resulted in the Jupiter’s death. The record showed that the

distal stomach was removed at that time. The removal of the distal stomach was

determined to be a departure from the standard of care.

Evidence in this case included testimony from 14 witnesses, medical records, reports

of approximately 6,000 pages, and multiple anatomic diagrams and images. One

witness, Dr. Randall, who had performed over 6,000 bariatric surgeries, testified that

in his opinion there was no surgical reason for removing the distal stomach. He

explained that the basis for that opinion was the positive postoperative

management opportunities of which Jupiter was deprived by the removal of the

distal stomach. Jupiter was discharged with an elevated white blood cell (WBC) count

without timely treatment. Dr. Randall was of the opinion that the elevated WBC

count indicated that there was an ongoing infection at the time Jupiter was

discharged.

Jupiter was readmitted to the VA hospital on June 13, 2003, and an evaluation of his

condition revealed a urinary tract infection (UTI), which was successfully treated. By

June 23, 2003, even though his WBC count remained high, he was discharged from

the VA hospital and sent to St. Alban’s Hospital. Dr. Telzak testified that that decision

departed from accepted medical practice. Additionally, he testified that the early

departure from the VA hospital on May 14, 2003, also was unacceptable medical

practice because no determination was made as to why his WBC count remained

elevated. His testimony was further supported by the fact that several months later,

in November of 2003, an abdominal CT scan evidenced a gastric leak and fluid in the

ultra-abdominal cavity. This, he testified, was the cause of the elevated WBC count

on June 23.

The surgeon had failed to address Jupiter’s condition 2 months earlier when there

were signs of infection. Furthermore, he was indifferent as to whether or not his

recommendation to address the possibility of an internal gastric leak attributable to

his surgery was addressed. He claimed it was the medical service’s responsibility and

not his. His testimony is startling given the testimony of Dr. Weinshel, the Deputy

Chief of Staff of the VA hospital who, when asked whether the department of

surgery was responsible for the patient’s follow-up care, answered “sure.”69

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The failure to make or attempt to make a differential diagnosis which the

undiagnosed elevated white blood count, the fever (the inexplicable failure to

take his temperature for weeks), his progressive debilitation, failure to thrive,

anorexia, virtually cried out for is, that if that were done and the relationship

between an intra-abdominal leak and the infection was revealed and corrective

surgery performed at or about June 2003, the likelihood of a successful outcome

was better than it was when that surgery was finally performed approximately 5

months later, in November. Tr.76, 195-96.

The court concluded that the defendant’s negligence was the proximate cause of the

patient’s pain and suffering. The plaintiff’s estate was awarded $5.9 million.

Failure to Provide Follow-up Care Failure to provide follow-up care can result in a lawsuit if such failure results in injury

to a patient. In Truan v. Smith, the Tennessee Supreme Court entered judgment in

favor of the plaintiffs, who had brought action against a treating physician for

damages alleged to have been the result of malpractice by the physician in the

examination, diagnosis, and treatment of breast cancer. In January or February of

1974, the patient noticed a change in the size and firmness of her left breast, which

she attributed to an implant. She later noticed discoloration and pain on pressure.

While being examined by the defendant on March 25, 1974, for another ailment, the

patient brought her symptoms to the physician’s attention but received no

significant response, and the physician made no examination of the breast at that

time. The patient brought her symptoms to the attention of her physician for the

second time on May 6, 1974. She had been advised by the defendant to observe her

left breast for 30 days for a change in symptoms, which at the time of the

examination included discomfort, discoloration, numbness, and sharp pain. She was

given an appointment for 1 month later. The patient, on the morning of her

appointment, June 3, 1974, called the physician’s office and informed the nurse that

her symptoms had not changed and that she would like to know whether she

should keep her appointment. The nurse indicated that she would pass on her

message to the physician. The patient assumed she would be called back if it was

necessary to see the physician.

By late June, the symptoms became more acute, and the patient made an

appointment to see the defendant physician on July 8, 1974. The patient also was

scheduled to see a specialist on July 10, 1974, at which time she was admitted to the

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hospital and was diagnosed as having a malignant mass. A radical mastectomy was

performed. Expert witnesses expressed the opinion that the mass had been

palpable 7 months before the removal. When the defendant undertook to give the

plaintiff a complete physical examination and embarked on a wait-and-see program

as an aid in diagnosis, the physician should have followed up with his patient, who

died before the conclusion of the trial.

The state supreme court held that the evidence was sufficient to support a finding

that the defendant was guilty of malpractice in failing to inform his patient that

cancer was a possible cause of her complaints and in failing to make any effort to

see his patient at the expiration of the observation period instituted by him.

Failure to Follow Up on Test Results The patient in Downey v. University Internists of St. Louis, Inc. entered the hospital

in December of 1996 for heart bypass surgery. Two chest X-rays were taken during

this hospitalization. The X-rays were interpreted as showing a lesion in the patient’s

left lung and that a neoplasm could not be completely ruled out. If clinically

warranted, CT scanning could be performed. No further tests or evaluations were

ordered in response to these reports. A jury found that the now-deceased patient

had a material chance of surviving his cancer and that his chance of survival was lost

as a result of the physician’s negligence. The jury, however, did not award damages

to compensate for the harm suffered. The Missouri Court of Appeals found that the

verdict of no-damage award was inconsistent with the evidence and remanded the

case for a new trial.

Abandonment Lack of patient care follow-up can sometimes be the result of the physician

abandoning his patient for a variety of reasons. It can be the result of a personality

conflict or it could be pure negligence in following up on the patient’s care needs.

The relationship between a physician and a patient, once established, continues

until it is ended by the mutual consent of the parties, the patient’s dismissal of the

physician, the physician’s withdrawal from the case, or agreement that the

physician’s services are no longer required. A physician who decides to withdraw his

or her services must provide the patient with reasonable notice so that the services

of another physician can be obtained. Premature termination of treatment is often

the subject of a legal action for abandonment—the unilateral termination of a

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physician–patient relationship by the physician without notice to the patient. The

following elements should be established in order for a patient to recover damages

for abandonment:

Medical care was unreasonably discontinued.

The discontinuance of medical care was against the patient’s will. Termination of the

physician–patient relationship must have been brought about by a unilateral act of

the physician. There can be no issue of abandonment if the relationship is

terminated by mutual consent or by dismissal of the physician by the patient.

The physician failed to arrange for care by another physician.

Foresight indicated that discontinuance might result in physical harm to the patient.

Actual harm was suffered by the patient.