No Physician-Patient Relationship; No Malpractice Claim

Jeffrey Fettig, while under the influence of alcohol and prescription drugs, hit a vehicle driven by Thomas Stanley, leading to his death. Janet Stanley, Thomas’s wife, filed a lawsuit against Dr. Floyd Garrett who was a psychiatrist and was treating Jeffrey Fettig for alcoholism…law.com, Janet Lee Graham Stanley et al. v. Floyd P. Garrett et al. 2020

Janet claimed professional negligence on the part of Garrett in treating Fettig and failure to prevent him from driving despite the fact that he had met him just hours before the accident.

The trial court dismissed Stanley’s professional-negligence claim which was upheld by the appeals court.

The appeals court in its judgment said that the Georgia law is clear that physician-patient privity is an absolute requirement for the maintenance of a professional malpractice action. If there is no physician-patient relationship, then there can be no liability for malpractice and in this case, there is no dispute that neither Stanley nor her husband were Garrett’s patients.

As a result, the trial court was right in granting Garrett’s motion to dismiss Stanley’s professional-negligence claim.

________________________

Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD

Woman Sues Doctor For Ignoring Black Box Warning on Prescribed Drug

A 21-year-old woman presented to Dr P, a psychiatrist, for alcohol dependence. Dr P took a history of depression and mood swings for 5 years, anxiety for 3 years, and paranoia for 2 years. The patient got the prescription filled, took the half-tablets over the next week, and then began taking a full tablet before developing a skin rash that led to her hospitalization several days later for Stevens-Johnson syndrome with toxic epidermal necrolysis…medscape, Malpractice Case: Black Box Warnings Can Come Back to Bite in Court, Gordon T. Ownby, 2020

Dr P assessed bipolar I disorder without psychotic behavior as well as alcohol dependence. His plan was to prescribe a trial of lamotrigine for mood stabilization. He also discussed network therapy to assist the patient with sobriety.

Dr P’s prescription for lamotrigine 100 mg stated: “Take ½ 100 mg tab daily 7 days; then 1 tab 7 days, then 1 ½ tab 7 days, then 2 tabs 9 days.” Follow-up was to be in 4 weeks.

(The manufacturer’s recommended dosing for lamotrigine was: 25 mg for 14 days; 50 mg for 14 days; 100 mg for 7 days; 200 mg for 7 days.)

The patient experienced significant skin involvement on over half of her body, suffered ocular involvement, and required mechanical debridement and saline irrigation.
The patient sued Dr P, alleging that lamotrigine’s “black box” warned of life-threatening rashes and that factors that may increase the risk for rash include “exceeding recommended initial dose of lamotrigine.”
While Dr P could testify of past satisfactory experience with similar dose levels for other patients, the plaintiff would undoubtedly bring to trial an expert to describe why Dr P should have adopted a “start low and go slow” approach to avoid serious injury.

Significantly, Dr P’s generic documentation of informed consent lacked any reference as to why he departed from the commonly understood recommendations for avoiding the low-frequency/high-risk rash associated with steep lamotrigine dosing. The patient and Dr P resolved the litigation informally.

________________________

Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD

Texas Woman Gets Another Shot At Trial Against Doctor Who Drilled Misplaced Screws Into Her Nerves

In 2016, appellee Lesa Swanson had pain in her lower back and legs and consulted Dr. Anil Kumar Kesani. After there was no improvement in the next 6 months from non-surgical treatment and physiotherapy, Dr. Kesani suggested that she consider surgery. Swanson agreed to undergo a combination of two spinal-fusion surgeries…law, Mitchell v. Swanson, 2020

During the course of second surgery, Dr Kesani misplaced some of the screws so that they were drilled directly into the nerves in the center of the spine leading to Swanson experiencing numbness, weakness, and extreme pain upon regaining consciousness. Dr. Kesani conducted a CT and then performed a second surgery, to apparently correct the mistake, but did not admit making it.

Swanson filed suit against Dr. Kesani, alleging that his medical negligence left her with extensive, permanent injuries. Supporting her claims, Dr. J. Bob Blacklock, a Houston-based neurosurgeon, gave a seventeen-page expert report that was included in the lawsuit. However, the trial court, citing inadequate and deficient reports, dismissed the case.

The Texas Court of Appeals reversed the trial court’s decision to dismiss Swanson’s motion saying that while the reports are indeed deficient, they are not so devoid of substance that they constitute no reports at all. Swanson has therefore right to remand and not an outright dismissal of her claims. Now the trial court must consider whether to grant a thirty-day extension to Swanson to cure the deficiencies.

________________________

Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD

Med Mal Suit Axed Over Double Recovery Revived

The highest court in Virginia reversed Tazewell County judge’s dismissal of a suit accusing Drs. Waheed Bhatti, Qasim Rao and Ariel Rodriguez Pimentel of failing to recognize patient Oneida Green’s bowel injury after she was hospitalized for abdominal pain and discharging her without ordering further treatment…law360, Va. Justices Revive Med Mal Suit Axed For ‘Double Recovery’, Y. Peter Kang, 2020

Oneida Green, after being discharged, sought medical care at a Kentucky hospital about 70 miles away and was again discharged. About a week later she was diagnosed with a necrotic bowel and underwent surgery, but complications led to her death approximately two months later. Her husband Lewis Green sued the doctors.

The trial judge had granted the three Virginia doctors’ motion to dismiss, reasoning that an undisclosed settlement Green made to resolve a separate suit against the Kentucky health care providers barred any recovery in Virginia for the same injury. The judge cited a Virginia statute, Code § 8.01-56, which states that a plaintiff may only recover damages for one injury under either a wrongful death or personal injury cause of action, not both.

The Supreme Court judges disagreed and said that the statute and other common law principles that prohibit double recovery did not apply to Green’s case because the trial judge could have reduced any damages awarded in the Virginia case to account for the Kentucky settlement. “An allegation of a potential double recovery was not a sufficient basis for dismissing Green’s action; any alleged double recovery can be addressed by the circuit court,” Justice S. Bernard Goodwyn wrote for the court. The judges also said that “There is no language in Code § 8.01-56 that would prohibit the filing of a wrongful death action in Virginia because of the settlement of a personal injury claim in another state.”

Delivering the verdict, the court said that because Green alleged the three doctors’ negligence proximately caused his wife’s death, under Virginia law he had no choice but to pursue a wrongful death claim.

________________________

Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD

Unauthorized Penis Surgery Leads To A Multimillion Dollar Award

In 2014, Keith Burchell went to Loma Linda University Medical Center, in Loma Linda, California, to have a small scrotal mass removed for testing. During the procedure, however, Burchell’s surgeon, of Faculty Physicians and Surgeons of the Loma Linda University School of Medicine (FPS), discovered that the mass was more extensive than his presurgical exams had indicated, involving not only Burchell’s scrotum but his penis as well…medscape, Man Wins Big Award for Unauthorized Penis Surgery, Wayne J. Guglielmo, 2020

Believing this larger tumor to be malignant – and convinced that even a benign one of this size posed a potential risk should it continue to grow – the surgeon elected to remove the total mass. In the process, he excised tissue not only from his patient’s scrotum but also his penis, a procedure known as a “resection of the proximal corpora.” Such a resection, the physician understood, would almost certainly cause his patient to become impotent.

Despite this, the surgeon went ahead without further consultation with either his patient (who was under anesthesia) or his patient’s designated proxy, his ex-wife. Burchell experienced substantial postsurgical side effects. Some of these – including an infection that required emergency treatment.

In his suit against the medical group, FPS, Burchell alleged both professional negligence and what’s known in the law as “medical battery,” which in California can be of two kinds. The kind most relevant in the Burchell case is when a doctor obtains patient consent to perform one type of procedure but ends up performing a “substantially different” type for which no consent has been obtained.

The trial jury sided with Burchell, awarding him $4 million for past noneconomic loses, $5,250,000 for future noneconomic loses, and roughly $22,000 in economic damages. FPS appealed.

The appeals court however, disagreed. It would have been one thing, the justices said, had the surgeon, in the course of treating the patient, encountered a complication requiring a procedure for which the patient had not consented but that nevertheless constituted a life-threatening emergency requiring immediate attention.

________________________

Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD