Gastroenterologist and Hospital Exonerated After Multiple Legal Battles: Case Study

Facts of the Case

A 70-year-old man was found face down and unconscious on the street. When the police arrived and aroused him, he punched one of the officers. The man had a history of being convicted for DWI and was serving a five-year term of probation. He was brought to the ED of a nearby hospital. His blood alcohol level was .457. A CT scan showed no intracranial bleeding.

A MLMIC-insured gastroenterologist was called in consultation by the ED physician due to the patient’s decreased hematocrit and hemoglobin and a finding of occult fecal blood. The gastroenterologist’s assessment was that the patient had alcoholic gastritis. He recommended that the patient undergo a colonoscopy after completing alcohol rehabilitation. He planned to follow the patient after discharge as an outpatient.

Several weeks later, the gastroenterologist saw the patient. The patient advised him that he “hated doctors and hospitals.” He reported that his rectal bleeding had persisted since his discharge from the emergency department. He stated he had never had a colonoscopy but expressed concern that he might have colon cancer and was willing to undergo one. The physician advised him of the risks of a colonoscopy. The consent discussion included the risks of death, bleeding, perforation, the need for surgical repair and a colostomy. The patient then consented to undergo a colonoscopy.

The colonoscopy revealed diverticulosis in the sigmoid and descending colons, as well as vascular friability and angiodysplasia in the cecum. The gastroenterologist used an argon plasma coagulator (APC) to cauterize the sites of angiodysplasia. The patient’s colon was otherwise normal. There were no apparent complications.

When the patient was taken to the recovery room at 9:30 a.m., the physician wrote orders to discharge the patient when the appropriate discharge criteria were met. However, when the gastroenterologist briefly saw the patient again at 10:30 a.m., he told the patient to wait for him to return to discuss the colonoscopy results. He then gave these same verbal orders to three of the recovery room nurses.

At 12:15 p.m., the gastroenterologist returned to the unit and found that this patient had already left the facility. The unit’s nurse manager explained that he was discharged because of the written order that all discharge criteria had been met. Further, the patient had demanded to leave the hospital. He had executed an AMA form and left, despite being advised he should remain to speak to his physician. Unfortunately, the patient’s signature was neither witnessed, timed, nor dated on the AMA form.

At 5:30 p.m., the gastroenterologist received a message from his answering service to call the patient or his daughter. He returned the call within ten minutes, and the plaintiff’s daughter reported that her father was “gassy.” The physician advised the daughter that her father either had retained air in his colon or he could have a perforation. He asked whether her father was in pain. The physician claimed that she denied this. During a deposition, the physician stated that he told the daughter to take her father to the ED promptly to be evaluated and to have an abdominal x-ray. The gastroenterologist also claimed the patient spoke to him during that call and claimed the patient denied having any problems other than passing gas. The physician also told the patient to go to the ED or call 911 if his discomfort worsened. Finally, the physician advised the patient’s daughter that he would check on her father later that evening.

At 7:30 p.m. that same evening, the physician called the patient. The patient was upset by his call and asked, “Why are you calling me again?” The gastroenterologist told the patient that he had promised his daughter that he would follow up with him. He again told the patient that if he was still having gas or any other pain, he had to be evaluated in the ED. The patient allegedly told him to “stop bothering me” and abruptly hung up the telephone.

When his daughter’s calls to the patient went unanswered the next day, she went to his home and found him dead. An autopsy revealed a perfora tion of the ascending colon, 2 inches from the ileocecal valve, with evidence of peritonitis and fecal soilage of the peritoneal cavity. The primary cause of death was determined to be acute peritonitis with perforation of the colon “due to a colonoscopy with an argon plasma coagulator (APC).”

Lawsuit and Trial

The patient’s daughter then commenced a lawsuit against both the gastroenterologist and the hospital. MLMIC retained multiple experts to review this matter. They all opined that there were clear indications to perform the colonoscopy. Although the GI expert had some concerns about the use of the APC, including the lack of documentation of the wattage used and the number of pulses delivered, he felt the standard of care was met.

The expert in internal medicine expressed concern about the telephone conversations that the gastroenterologist had with both the patient and the daughter since his written documentation of these calls was untimed and undated. The MLMIC claim specialist questioned whether a jury would believe that this documentation was made prior to the decedent’s death.

In February 2015, this case went to trial. The plaintiff demanded $300,000 to settle the lawsuit. Prior to jury selection, the judge ruled that he would not permit the AMA form to be entered into evidence. He also would not permit the defense to discuss the patient’s alcoholism or prior DWI conviction. Finally, the judge would not permit the defendant’s physician to testify regarding the substance of his second telephone conversation with the decedent based upon what is called the “Dead Man’s Statute.”

The plaintiff’s counsel focused her case on the decedent’s discharge from the facility. Throughout the trial, the judge ruled in favor of the plaintiff’s attorney on any objections made by defense counsel. The defendant testified that if the decedent had not left the hospital before speaking with him, the perforation would likely have been diagnosed, and this would have increased his chances of survival. Fortunately, the defense counsel was still able to introduce the AMA form into evidence by having the nurse manager from the post-procedure unit read the chart into the court record without any objection from the plaintiff’s counsel. However, the judge did instruct the jury that the AMA form was not a valid release under the law. He further ruled that this form did not absolve the hospital from liability.

The plaintiff’s expert admitted that not only was the colonoscopy procedure indicated, but that perforations are known complications of this procedure that can occur in the absence of negligence. This expert also did not criticize the technique used by defendant. However, he did testify that the defendant clearly deviated from the standard of care by giving verbal rather than written orders to the nursing staff to keep the patient in the unit until the defendant returned. The expert also testified that the defendant physician failed to evaluate the decedent prior to his discharge and failed to refer the decedent to the ED after he was home. Finally, he testified that by advising the decedent’s daughter to allow the decedent to eat, the defendant had caused the decedent’s death.

The plaintiff testified about the telephone call with the defendant the day before her father died. She had a significantly different recollection of the content of that call than the physician. She testified that she told the defendant that her father was in severe pain, had pressure in his stom ach and was diaphoretic. According to her testimony, she claimed the defendant told her, “It might be a good idea to give her father some thing to eat or drink.” Apparently, she then gave him fluids and food. She further denied that she was ever told by the defendant to take him to the ED. Finally, she insisted that decedent did not speak with the physician while she was present.

At the end of the plaintiff’s case, the defense counsel moved to dismiss the lawsuit based upon the failure of the plaintiff to prove causation. He stated that the plaintiff’s expert only offered his opinion on alleged departures from the standard of care but did not link them causally to decedent’s death. As a result, the trial court dismissed the lawsuit.

Appeal and Reversal

The plaintiff’s counsel appealed the dismissal. The New York State Supreme Court, Appellate Division, 4th Dept., reversed the trial court’s dismissal and ordered a new trial. The Court found that the defendant’s actions “substantially diminished the decedent’s chance of surviving the bowel perforation and subsequent infection.” The defense counsel then appealed the dismissal to the New York State Court of Appeals. However, the motion to appeal this decision was denied. The lawsuit was then re-tried in 2018 before a different judge.

The second trial ended in a defense verdict in favor of the defendant gastroenterologist. Further, although the jury did find negligence on the part of the hospital, they did not find that the facility proximately caused the decedent to die. Therefore, no damages were awarded to the plaintiff.

Legal Takeaways

As we see in many claim studies, there are several takeaways.

Informed Consent

While the defendant eventually prevailed, this case presented a multitude of legal and risk manage ment issues. The first issue identified in this case was an alleged lack of informed consent. The patient signed only an informed consent form from the hospital that did not specifically delineate the risks of a colonoscopy. Fortunately, the risk of perforation is a well-known and common compli cation of a colonoscopy. Therefore, the physician can testify that it is his regular practice to advise the patient of the risks, benefits and alternatives to a colonoscopy, including a few of the most severe and the most common risks. When having an informed consent discussion, the risks of the alternatives, including no treatment, must also be discussed. The gastroenterologist, however, did document that he had an informed consent discussion with the patient in his office notes. He stated he explained what the procedure entailed as well as providing the risks and benefits of the procedure.

Evidence Excluded

Another problem that arose was the validity of the AMA (leaving against medical advice) form. Although the patient signed this form before leaving the facility, the signature was not witnessed, timed or dated. At the first trial, the judge excluded this form from being admitted as evidence based on the Dead Man’s Statute (New York State CPLR 4519). This statute provides that, under certain circumstances, an interested witness cannot testify against a decedent about conversations held with the decedent. However, if the form had been properly dated, timed and authenticated, it could have been introduced as a part of the medical record and entered as evidence as a valid declaration against the dece dent’s interests. Instead, the counsel for the defendant was permitted only to use the telephone records of the defendant physician, which would provide evidence of the calls he made to the decedent. In fact, during the first trial, the judge appeared to give the plaintiff’s counsel every advantage, not only by not admitting the AMA form into evidence but also by excluding evidence of the decedent’s alcoholism and felony DWI conviction. He ruled that this information could only be used to determine the dece dent’s life expectancy and damages.

Testimony

The plaintiff’s expert testified primar ily about the fact that the defendant should have issued written orders to the nursing staff, rather than giving them verbal orders to have the patient remain on the unit until the defendant returned. The expert testified that this was a breach of the standard of care. While a written order is preferable, verbal orders are legally acceptable. However, the defense was able to counter a weakness in this case that the verbal orders contradicted and superseded the prior written order permitting discharge after appro priate recovery criteria were met. Other than standing orders for post-procedure care, written orders are not commonly issued in many post-procedure units. Further, verbal orders are permissible pursuant to 10 NYCRR 405.10(c)(8), the regulation that governs hospitals. They are to be used sparingly and authenticated by the physician within the time frame required by the hospital. Therefore, this expert’s testimony about verbal orders was easily contested.

Directed Verdict

Despite the latitude the judge initially permitted to the plaintiff’s counsel during the trial, the defense counsel moved at the end of the plaintiff’s case for a directed verdict (NYS CPLR 4401) in favor of the defendant.

This motion is made when a plaintiff has provided insufficient evidence to sustain a verdict after presenting their case. It requires that the judge consider the evidence the plaintiff has presented and, even when viewed in the most favorable light to the plaintiff, giving him or her the benefit of every inference, not find a rational basis to find in favor of the plaintiff. The judge granted this motion and dismissed the lawsuit against the defendant.

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This document is for general purposes only and should not be construed as medical or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical or professional obligations, the applicable state or federal laws or other professional questions.