A. Case Scenario
OVERVIEW
Mr. John Smith, an athletic 44-year-old, died shortly after developing flu-like symptoms. He went to the ER about a week after developing symptoms, where he saw a nurse and physician’s assistant (PA). The PA examined Mr. Smith and diagnosed him with a viral infection. Vicodin was prescribed for pain. Mr. Smith returned to the emergency room three days later when his symptoms had become much worse. He was hospitalized and treated immediately, but his health continued to decline. Mr. Smith died of toxic shock syndrome and scarlet fever two days into his hospitalization. The questions for you to determine follow: Were any of the defendants negligent in the diagnosis and treatment of Mr. Smith? Was there vicarious liability on the part of the MD and Group? Did negligence cause Mr. Smith’s death? If you answer yes to these questions, we will also ask you to determine: How much, if any, should each of the defendants pay Mr. Smith’s family members for its actions in this case?
PARTIES THE PLAINTIFFS The plaintiffs include Mr. Smith’s wife and two children. Mrs. Jane Smith
Jane Smith was marred to her husband 20 years. Joe Smith
Joe Smith is currently a college student. Jill Smith
Jill Smith is the younger of the two Smith children. She is also a college student.
THE DEFENDANTS
Medical Group
Medical Group has a contract to provide Hospital with emergency doctors and physician’s assistants (PAs) to work in the medical center’s ER. Hospital pays the medical group a fee, and the medical group then distributes some of that money to pay its doctors and physician’s assistants who work at Hospital.
Greg Jones, M.D. (the director) Dr. Jones is a partner at Medical Group and was the PA’s supervising physician. .
Ken Adams (the physician’s assistant) Ken Adams is the PA who saw Mr. Smith at Hospital. Mr. Adams is an employee of the Medical Group.
Late February 2004: Mr. Smith Becomes Ill
Mr. Smith is visiting out of state where he is exposed to a friend who was ill. Mr. Smith notices that he is developing a cough and sore throat around the time he returns home to the bay area on February 29, 2004. His symptoms worsen over the next few days. By March 4th, his body is aching. He develops a fever and the sore throat persists. He decides to stay home in bed and allow himself time to recover. However, he feels worse over the next few days. His sore throat is not going away, and his fever does not go down. He experiences swollen glands, chills, severe body aches, and a severe headache. His fever ranges between 100 and 105.
March 8, 2004: Hospital On March 8, Mr. Smith calls a friend and asks to be taken to the hospital. Alarmed, the friend calls his wife, and she immediately drives to Mr. Smith’s home and takes him to the ER at Hospital. Nurse Jim Doe briefly sees the patient who is almost immediately seen by the PA, Mr. Adams.
Mr. Adams examines the patient and takes his vitals. His blood pressure is in the low range of normal and all of the other vital signs are in the normal range. Mr. Smith tells Mr. Adams that he has experienced body aches and headaches for the last 4 days. He also tells the physician’s assistant that he has developed a cough, congestion, and a fever. The PA takes his temperature, but Mr. Smith does not have a fever at that time. Mr. Adams asks Mr. Smith to rate his pain on a scale from 1 to 10, with a “1” being mild pain and a “10” being severe pain. Mr. Smith describes his pain as a “10.” Mr. Adams diagnoses Mr. Smith with a virus and sends the patient home with a prescription of Vicodin for his pain. Mr. Adams tells the patient to return to the hospital in two days if his symptoms do not improve or if they become worse. March 11, 2004: The Second Hospital Visit
Three days after his first visit to Hospital, Mr. Smith’s symptoms are much worse than when he first went to the hospital. He is barely able to walk. Mr. Smith returns to Hospital at 7:00 a.m., Mr. Smith complains of headaches, nausea, vomiting, and body aches. He has developed a rash. He is admitted where doctors immediately take blood cultures and perform other tests to determine the nature of his illness. March 14, 2004: Mr. Smith’s Death
Blood tests had revealed that he has a Strep A (bacterial) infection, and the hospital has been treating Mr. Smith for the infection and for toxic shock from that infection. Nevertheless, Mr. Smith’s health continues to decline rapidly until his death on March 14. Records indicate that his death is due to toxic shock syndrome and scarlet fever (resulting from a Strep A infection).
PLAINTIFFS’ ARGUMENTS
1. Medical Negligence
The defendants failed to meet the standard of care. The plaintiff’s argue that the defendants failed to meet the standard of care because they staffed the ER with PAs and no doctor saw the patient. Doctors are board certified in emergency medicine attend medical school for 4 years. This is followed by a residency in emergency medicine for 4 more years. Before undergoing a series of difficult tests for board certification, a doctor must work as an emergency room doctor for at least one more year after his or her residence. It is difficult to get board certified in less than 10 years of post graduate study. PAs only spend two years in an approved training program that focuses on general issues rather than issues specific to emergency medicine. The plaintiffs’ experts testify that ER doctors receive such specific and thorough training because of the demands of emergency medicine. Doctors who work in ER see all kinds of patients in crisis situations with all kinds of injuries. People who work in this situation must think quickly and act quickly to all of these situations. ER’s are simply too demanding to be staffed with PAs who do not consult with doctors. The experts testify that leaving it in the sole discretion of the PA to consult with the MD is not adequate supervision under these demanding conditions. Time is of the essence, and a doctor needs to be able to see a patient in person to fully understand the patient’s illness or injuries. Just because someone meets a legal minimum does not mean the standard of care is met. The plaintiffs’ experts testify that, just because it is legal for an ER to be staffed by PAs with the option of consulting with an MD does not mean this meets the standard of care.
Against Mr. Adams, Dr. Jones & Medical Group
Mr. Smith was rushed in and out of the ER. The Plaintiffs argue that Hospital and Mr. Adams rushed the examination in order to get the patient out of the ER as soon as possible. From the time Mr. Smith arrived and when he left was less than 20 minutes. The examination at Hospital was inadequate and incomplete. The plaintiffs’ experts will state that Mr. Adams did not take an adequate history of the patient. They testify that the examination was poorly conducted and that his vitals were “eye popping,” particularly his low blood pressure and his complaints of severe pain (10 on a 10 point scale). The plaintiffs’ emergency expert testifies that Mr. Smith was in the initial stages of sepsis when he presented to the urgent care center based on the low blood pressure and pain scale. The friends who first took Mr. Smith to Hospital and Mr. Smith’s daughter both say that he complained of a sore throat prior to his first visit to Hospital. The experts testify that Mr. Smith’s complaint of a sore throat indicates that he already had pharyngitis (a sore throat) when he was at Hospital. Furthermore, paperwork that was completed after he was hospitalized during his second hospital visit reported that the patient had a history of a sore throat. Mr. Adams’s documentation was poor, and he failed to follow the Group procedures. Mr. Adams testifies that he diagnosed an upper respiratory infection, but Mr. Adams did not document it at all. There is no mention of the diagnosis in Mr. Smith’s records. Medical professionals sometimes consider “differential diagnoses.” This is when there is more than one possible diagnosis. The medical professional writes down all of the differential diagnoses and then does what he or she can to determine which diagnosis best fits the patient’s symptoms. Even if Mr. Adams included an upper respiratory infection (a viral infection) as a differential diagnosis, he did not follow the Group’s specific written procedures for the management of an upper respiratory infection that was to be followed by PAs working alongside ER physicians. The procedures required Mr. Adams to do one of two things. When a PA finds an abnormal vital sign, the PA is required to consult a physician. Or, the other procedure required the PA to consider treating the patient for strep (a bacterial infection) and antibiotics. Mr. Adams testifies that he never considered strep or antibiotics. Furthermore, he testifies that he did not know he was required to consult a physician if a vital sign was abnormal. The plaintiffs’ experts testify that Mr. Adams should have considered the patient’s low blood pressure abnormal.
Mr. Adams failed to consult with a physician before prescribing Vicodin. The plaintiffs argue that state law requires a PA to consult with a physician when prescribing a “scheduled” drug. Scheduled drugs include strong pain killers like Vicodin that are more closely monitored or controlled than other prescriptions. Even with the patient reporting severe pain from a headache and with the prescription of Vicodin, Mr. Adams must not have consulted a doctor because there is no evidence of a consultation in the medical record. This also leads the jury to find “negligence per se” which means the plaintiff need not prove by expert testimony that it was negligent to prescribe the Vicodin and they must assume negligence. The medical providers should have anticipated a more serious condition. The Plaintiffs’ experts testify that the examination and documentation were inadequate and incomplete. The medical providers should have anticipated a more serious condition. At the very least, Mr. Adams should have performed a rapid strep test or throat culture to determine if the condition was bacterial instead of viral. A bacterial infection is easily treated with antibiotic medication. Mr. Adams missed the diagnosis of a possible bacterial infection and failed to prescribe antibiotics, which are prescribed for bacteria that cause infections. The medical providers missed an opportunity to catch and treat a bacterial infection. The plaintiffs’ experts testify that the medical providers missed an opportunity to diagnose and treat Mr. Smith’s strep infection with antibiotics. The infection was allowed to go untreated, grow, and enter Mr. Smith’s blood stream, leading to his death. Mr. Adams, Dr. Jone and the Group are all responsible for the poor care Mr. Smith received. The plaintiff argues that, under the theory of vicarious liability, because the Group employees the PA and the MD is his supervising physician of the PA and a general partners of the group, any negligence by the PA is also negligence by the Group and MD.
DEFENSE ARGUMENTS
1. Medical Negligence
The nurse and physician’s assistant operated within the standard of care.
Defense experts testify that all the actions and documentation of Nurse Doe and Mr. Adams were within the standard of care. Nurse Doe had minimal contact with Mr. Smith, who was almost immediately seen by Mr. Adams. Records indicate that a thorough examination was conducted and that Mr. Adams took a thorough patient history. All of Mr. Smith’s vital signs were within normal limits. Mr. Smith presented to the urgent care center on March 8, 2004 with signs and symptoms that were consistent with a virus. Although Mr. Smith reported that he had been running a fever, he did not have a fever when his temperature was taken at the urgent care center. He was not taking any medications when he came to the hospital. Mr. Smith’s blood pressure was 91/60, which is the low end of normal but consistent with someone who is thin and physically fit. His breathing and pulse rate were both within normal limits. Notes indicate that he was alert, oriented, and able to talk and walk. His neurological exam was normal, and he did not complain of dizziness. Mr. Smith’s mouth was noted to be dry, and he did have a “tender left cervical node” (lymph node along the base of the neck). A dry mouth and tender cervical node both suggest a viral infection. The patient did not complain of a sore throat, but Mr. Adams still examined his throat and did not find any signs of redness or puss (common signs of infection). Mr. Adams even wrote in the record that Mr. Smith’s oropharynx (throat) was within normal limits. Although Mr. Adams does not specifically remember his examination of Mr. Smith, he testifies that his normal practice is to look inside a patient’s mouth and throat with a flash light. Mr. Adams did consider a bacterial infection in his diagnosis of the patient. The defense argues that Mr. Adams did consider a bacterial infection when he diagnosed the patient, but the patient’s symptoms were not consistent with a bacterial infection. Mr. Adams was aware that over-prescribing antibiotics is dangerous. Antibiotics may kill most bacteria in an infection, but they can leave behind a small number of bacteria that become resistant to an antibiotic. These bacteria become harder and harder to kill as antibiotics are overprescribed. The bacteria become resistant to many of these drugs and pose a greater threat to patients. Medical agencies around the world are cautioning doctors and PAs not to overprescribe antibiotics. In this case, defense experts argue that prescribing an antibiotic would not have helped because the patient most likely had a virus. Mr. Smith likely had a viral infection when he came to Hospital on March 8th.
Multiple defense experts testify that Mr. Smith likely had a viral syndrome while at the first ER visit and the P.A.’s diagnosis and discharge instructions were appropriate. The experts testify that Mr. Smith’s viral infection made him susceptible to a bacterial strep infection, which he likely developed after the first ER visit. The defense experts also testify that the bacterial infection that Mr. Smith developed after his visit to Hospital may have come from something he touched, an injury, or a wound rather than from his throat. Bacterial infections from a skin source are much more common for this type of infection than from the throat because the development of this type of toxic shock syndrome from a sore throat is very rare. So it is likely that nothing more could have been done for Mr. Smith on March 8th, and unfortunately, the patient waited three days to come back into the hospital when his symptoms had become much worse. PA’s can see patients in ER without all patients being seen by an MD The law is clear that so long as there are protocols in place governing a PA including delegation of duties contracts that specify what the PA can do, it is appropriate for PA’s to see patients in ER and seek the advise of their supervising physician when appropriate. This patient was appropriately triaged by the nurse and PA Smith. Given what appeared to be the low acuity of this patient, he did not need to be seen by an MD. PA Smith’s custom and practice is to contact his MD prior to RX Level II and above drugs Although the record does not indicate it, Mr. Smith’s custom and practice is to contact his supervising MD prior to prescribing certain drugs. Moreover, the prescription of Vicodin had nothing to do with the patient outcome.