What is so infuriating to me is that the person who caused the stroke, the chiropracter, was not sued!! This is a known, rare complication of manipulating the neck. If the stroke had been diagnosed at the first moment the patient arrived in the emergency room, the liklihood of a different outcome still seems very low. I am not a neurologist, but I don't think based on my knowledge of current practice, that posterior circulation strokes due to dissections are amenable to treatment.
Yep, the plaintiffs issued a pre-suit demand letter that included the chiropractor. The only reasonable explanation is that he settled before the lawsuit was filed.
What was that radiologist thinking? How did he not expect the plaintiffs attorney to not notice him transferring his personal assets?
If I were the ER doctor, I would have just let sleeping dogs lie and move on. I’m by no means a lawyer, but I’m hanging trouble envisioning a scenario where he wins his “bad faith” case.
One of the podcasts I listen to had a med map defense attorney talking about “nuclear verdicts.” He essentially said that although the law firms like to advertise these verdicts on their websites, what usually happens is that they negotiate with the defense team about what they and their client actually get (which often ends up being within the defendant’s policy limits). He said it’s extremely rare for a firm to go after a doctor’s personally assets unless they’re independently wealthy (ie they come from generational wealth, operate on famous athletes, have a tv show, etc). It’s typically not worth the time and expense.
"If I were the ER doctor, I would have just let sleeping dogs lie and move on. I’m by no means a lawyer, but I’m hanging trouble envisioning a scenario where he wins his “bad faith” case."
This is a logical next step for any of these cases that go for giant sums. Usually the plaintiff counsel will be onboard with it to, since they know the ED doc can't afford 45M, but the insurance company sure can. If you have any merit to your case (and there usually is an argument to be made in case with a giant verdict like this), the physician can settle/escape for a much lower sum by initiating the bad faith claim and then transfer rights to any verdict to the plaintiff, who then gets to go after the insurance directly for the larger sum. The plaintiff team will typically take over the case. It reminds me how financial debt can be sold --- capitalism is grand, ain't it?
Yup, it's a fucked up hidey hole of medicine that no one teaches you until you're in the midst. Blogs like this are worth their weight in gold just to see how these things play out in the real world. This case was just a miscarriage on all fronts.
Another fun fact -- check your insurance policy. Who is the named policy holder? Do you the physician have the primary right to settle? If not, your insurance company / work group can force you to go to court even if you want to settle! Policy limit not high enough for a high risk case? Doesn't matter! Just another way a bad faith claim can be threatened/get started.
I'm not a lawyer, but this radiologist's attempted asset transfer scheme, in legal terms, is called a fraudulent conveyance. In my opinion, doctors get sued so often that they have to be proactive in protecting their assets, but this, too, is difficult to do. You can't really trust (pun intended) anyone.
The double standard is if you get run over by some drunk, unemployed, and uninsured bum and are seriously/permanently crippled, you get nothing.
And the other double standard is you can not sue your lawyers for legal malpractice, even if the special appointed judge to hear your case immediately opines on its existence. I tried but it was of no use. Even when the damages could be calculated by standard IRS methodology down to the penny with no intangible issues like pain and suffering, or projections of future expenses, the KY court declared my losses were "based on speculation."
It’s not just protection from malpractice cases, but protection from liability in general. I personally am aware of a number of instances where physicians are subjected to significant verdicts due to the actions of family members or accidents, which have nothing to do with work, but it’s beyond the standard policy limit and results in significant financial expenses or hardships. Many juries will perceive that we have more resources than we may really have especially in the current environment we verdict size is actually increasing quite a bit. It is my understanding and believe that the long and short of it yes acid protection does work.
Seems to me that if the ER doc, the neurologist, and the radiologist had all just kept their cool and not slandered each other in the chart and lied about what happened and tried to throw each other under the bus, the case might have gone their way in a state where the bar is gross negligence rather than simple malpractice.
Not that I want bad medicine not to be punished but also 75M is a ridiculous nuclear verdict, it’s not justice to come after a new grad for 50M. None of us ever have that even if you gave us 5 lifetimes. I don’t think anyone set out to hurt this guy. They’re all just trying to do their jobs. I don’t know who will want to go into the field in the future if it means risks like this.
The finger-pointing and blaming in this case was the worst I've ever seen... and it's also the highest verdict I've seen. Makes you wonder if those things are causally connected.
I think there is an element of a panic-driven behavior by a normal doctor to do stupid things. I wonder, this ER doctor may really be a nice guy and reasonably competent, and in fact is a nicer guy than the radiologist or the neurologist, but being new to practice and fresh out of residency, he just panicked.
A parallel observation of men's behavior during war is made in the closing argument by the defense counsel Major Thomas in the Australian Film "Breaker Morant."
"The tragedy of war is not the acts abnormal men do during times of war, but the abnormal acts committed by otherwise normal men. "
This is a wild case for sure. I can't go fully into the details (the dots should be fairly easy to connect...) but I think its a poor look to describe the defense testimony as "so-called expert gets caught in his own dishonest scheme." I don't know if you have access to the full trial testimony but there is way more naunce to what the testimony was in court vs the edited clips that were pulled and woven together from several unrelated podcast episodes. Also its interesting that normally physicians names and employers are redacted in these posts yet this post pulls in information that makes the expert clearly identifiable (again the dots here are easy to connect). If allowed I'd be willing to post any/all testimony that I've ever given but I would suggest that when these are posted the experts should either be clearly identified or fully redacted for the sake of honesty and transparency. I think these are all tremendous write ups but just think it can be tough to accurately critique a colleagues testimony and integrity without showing all the details.
Thanks for the critique, I went back and re-read what I wrote and I actually agree with you. The language I used was too inflammatory and not entirely accurate. I have edited it to provide a more sober and de-identified analysis. I watched the relevant testimony online via Courtroom View Network (mostly long and boring but very interesting at a few key points). Happy to include additional info (or an insider's perspective!) if it is sent to me... definitely going to be sending more updates about this case anyway!
I really appreciate your willingness to hear me out. This case is fascinating and there is SO much that went on behind the scenes that isn't public but arguably should be. Thanks again for listening to my perspective and also for all the work you put into researching these cases.
Delaney you should cover this on the podcast. Would love to hear your side of it. Also talk about best states to practice to avoid crazy outcomes like this. Maybe bring someone from wealth management to see if assets can be protected against settlements like this preemptively
Very obvious especially to subscribers of the podcast. It seems the ER doctor had not actually signed his chart, and then added more information the next day before officially signing it? Or did he add an addendum? Because we all "modify" the chart before signing it, but an addendum is a bigger deal. Did they really go through the metadata to see when the ER doctor added more information to his chart?
Added more information the next day after he realized what happened, then signed it. Yes, they pulled the full audit trail and had exact times on when he documented specific things. The neurologist argued that the time stamps from the phone call and when the CTA results were signed meant that he couldn't have been told about it.
It’s very easy to audit chart access- I do it to check the spelling of peoples’ names when I have to document who I talked to. I can see who logged in and when on Cerner.
It's pretty sobering and makes you really think twice before you hit that "pend" button on your charts. I'm pretty sure Epic keeps a saved copy each time you hit this, so very easy to tell when you've added or deleted info between copies. Which is terrifying because how many times has a patient told you one thing, just to change it to the complete opposite later, or have their family reveal that they actually DID have X or didn't have Y (from a more reliable historian). In the hands of an unscrupulous attorney this could easily be used to paint you as falsifying information.
I usually put “late entry blah blah blah.” You can tell the difference between backtracking and trying to cover yourself… versus adding new information.
From what I understand, every time you save a chart without signing it, there's a permanent record. If you type a sentence and delete it before saving it, there's no record of that. But every time you save it and come back to it later, that's now in the permanent record. Most docs have never seen what the audit trail looks like for an EMR, I know I certainly hadn't until this lawsuit.
It really depends on what EMR you use. I know that Epic keeps a very clear timestamped record of all your audits (signatures) as well as your pended charts. You can dig around and find them pretty easily yourself.
Same goes for when you added instructions to a patients AVS, put their level of stay, diagnosis... etc. Each piece of this could foreseeably be used against you.
I think back to a case you had a while about a young patient with chest pain -- one of the main points made by the plaintiff counsel was that the patient was discharged too quickly for there have been time for a full exam or for the doc to have given them due thought. In the same line, I could easily see a timestamped diagnosis being added moments after the chart being opened painted negatively by a plaintiff --- ie: you anchored in a diagnosis before you could even get the data on the patient. Of course ignoring any of the realities of how notes are actually constructed and finished during a busy ER shift.
Back to your point tho -- it's less clear about about Cerner -- I know for a fact that a few years ago it was a mess of gobbledygook that was nearly impossible to look through. I know for a fact it didn't have each pended copy of each "saved" note though -- or at least it didn't back then. One of the few positives of the "shitty" EMRs is probably that they aren't sophisticated enough to have that data, or store it in any meaningful way. But given how rapidly tech evolves, best to act as if they do.
Cases like this are terrifying, and salient exemplars that needle in between our gluts every single day while we try to practice good medicine. And that's nothing to say about their affect in the med-mal arena, where well intending docs with highly defensible cases are settling under/at policy limits simply to avoid any chance of this outcome. How many BS cases get settled just because it brings individual risk to zero? What's their effect on driving defensive medical practices, patient perception of medical practice, and plaintiff willingness to take on nearly any case just hoping to saber rattle the right person? Ugh, horrible all around.
This ED doc practiced good medicine and even did the LP that I know many/most others would have turfed to the admitting team. He recognized the risk and ordered the right test, consulted the right initial specialist. Unless the verbal consult to the neurologist was GROSSLY different than what any normal ED doc would say (ie: not mentioning that the onset of symptoms was AFTER a chiropractic maneuver) -- the neurologist should have been requesting and then following a CT angio head/neck, even if it somehow slipped the ED doc's mind. What is this nonsense about never even being told that a CTA was ordered? Say nothing of it's actual results and when they populated -- If it wasn't mentioned, the neurologist should have been recommending it (and then following it!) as the first second third and fourth test before any LP...
I'll admit by bias, but between this lines this case really reads like a new grad getting bullied by an older 'wiser' doc who didn't want to bother with this patient.
In my opinion, even if the ER doc forgot to mention the neck adjustment and called before the CTA was back, it's still not grossly negligent. If I recall correctly, gross negligence is basically "lack of even slight care or diligence", and this doc went to great lengths in taking care of this patient. There are certainly many things that he could have done better, but it was not gross negligence.
“The hospital is the only defendant that actually has the funds to pay $75,000,000.” The appeal to go after the hospital is like a bastardization of Karl Marx’s slogan, "From each according to his ability, to each according to his needs." In this case, from each according to his ability to pay…
What is the role of the chiropractor here? Is he off the hook bc the patient was already experiencing symptoms or is he just not worth legally pursuing versus the doctors who (mal)treated him?
How do you continue with life if you owe millions of dollars? I could never hope to attain assets - in that amount- even if i worked every day of my life
as Med Mal reviewer said, bad faith lawsuit. There's no way the plaintiff sees even a fraction of this if they actually continue to go after the ED doc. Unless family absolutely refuses, is retributive, etc (which I suppose is possible), it's almost a guarantee that plaintiff counsel will show them the best path to payout for both of them is to support the bad faith suit (which can then be transferred directly to the plaintiff, freeing the ED doc). If for some reason it failed or had no grounds, then some sort of backroom settlement with the ED doc is most likely --- also mentioned by MMR in another comment above
The amounts of the verdict are crazy. Was this person a NFL player that was going to be worth 75 million dollars. I see this ending up with settlements from everyone involved, I'm not sure I know a lot of doctors that can pay a 45 million dollar verdict. I'm curious if bankruptcy would resolve this if the bad faith lawsuit doesn't work out. On a side note, his only asset is his house if he is joint owner with his wife that should protect them from losing their house hopefully.
This state has gross negligence standard (which in my opinion, the ER doctor was not grossly negligent despite the valid criticisms against him), but does not have a cap on non-economic damages. $46,000,000 of the verdict was for pain/suffering which, if I'm understanding correctly, fall under the non-economic damages that some states would not have allowed.
The $75 million is not based on his likely future earnings. It was the cost of his future medical care needs, along with the fair market value of what was taken from him and the pain of suffering of living life in a locked in state. How much money would it take for you to agree to be "locked in" for the rest of your life?
It was $0 for future earnings, $20,000,000 for future medical expenses, $9,000,000 for past medical expenses, $46,000,000 for future pain and suffering. There's no money I would take to be locked-in, although its interesting because studies of locked in people show that many are able to adapt psychologically despite their disability and still find satisfaction with life (example - https://pmc.ncbi.nlm.nih.gov/articles/PMC4506615/)
Thanks for the breakdown and the study. Very interesting. I’m a medical malpractice trial lawyer and was trying to shed light on what exactly non-economic damages are, in response to the earlier comment about the plaintiff not being an NFL player. It’s a difficult thing for jurors and the public in general to wrap their head around. I typically refer to it as the “fair market value” of what was taken from the plaintiff, and the fair market value of what the plaintiff has gone through and will go through for the rest of their life. Lost wages and lost future earning capacity are separate damages that, in my opinion, are in no way connected to the non-economic damages.
I appreciate your Substack. It’s very informative!
Thanks! I'm sure it's always a challenge to get the jury to understand these concepts. I haven't had many attorneys comment, I hope you'll leave more comments when you have legal insights or other perspectives that we may be blind to on the medical side of things.
Was this ED doc an employee of the hospital or part of a medical group contracted to work there?
I’m just curious as to how this case wooos translate to a situation where the ED was an employee (and thus presumably an agent of the hospital). Would the hospitals insurance policy + catastrophic coverage take care of everything and the ED physician would be financially relatively protected ?
I know the PA involved in the case. The PA was the only hospital employee and therefore kept on the suit. The stroke was completed on admission to the ICU.
I must say, there is definitely a difference between adding important information to a draft note before signing vs. editing an already signed note to hide an error - this appears to have been lost on the jury.
Fair enough, but when it's not done contemporaneously, is only done after finding out about the bad outcome, and is done in a way that could reasonably be construed as self-serving, I think it's a bad idea. At the very least I would contact the hospital's legal department and discuss with them before touching the chart at all. You'd rather be the doctor who forgot to write something down than the doctor who looks like they lied. One is an innocent error, one is malicious (or at least looks that way to the jury).
In my experience, and yes, I went through a few medical malpractice lawsuits and appeals, the Appeals Court will generally not disturb a jury's finding in the trial court as long as it is based on credible expert testimony. The Appellate Courts admit they have no expertise in medical standards of care or medical probabilities, or even with more dogmatic matters like appraisers' or accountants' valuations of property by which they can justify disturbing a trial court's jury decision. No legitimate accountant or appraiser would give a fair market value of $10 for a million-dollar property, so in this case, the radiologist's attempts to hide his assets after the verdict is outrageous. Even if he had tried to do it the very next day after this actual medical event, it would have been too late.
Generally, Appeals Courts overturn or reduce an award due to some legal technicality or insufficiency of evidence. You can't introduce new evidence on appeal.
And then there are, I have read, provisions for pre-trial high-low agreements between Plaintiffs and Defendants. A Defendant is thus protected against a catastrophic verdict in the event the Plaintiff wins, while the Defendant's med-mal insurer has agreed to a pretrial minimum settlement even if the Plaintiff loses. So who knows what really goes on in the Judge's chamber or between the Plaintiff and Defendant's lawyers?
What is so infuriating to me is that the person who caused the stroke, the chiropracter, was not sued!! This is a known, rare complication of manipulating the neck. If the stroke had been diagnosed at the first moment the patient arrived in the emergency room, the liklihood of a different outcome still seems very low. I am not a neurologist, but I don't think based on my knowledge of current practice, that posterior circulation strokes due to dissections are amenable to treatment.
Unless I’m conflating ths with a different medmalrevewer story, the chiropractor settled right away. That’s why they’re not part of the law suit.
Yep, the plaintiffs issued a pre-suit demand letter that included the chiropractor. The only reasonable explanation is that he settled before the lawsuit was filed.
Or you sign away your rights in some long thing no one reads. Lots of quack “docs” (naturopaths too) for whom they never seem to get sued.
I audibly said "holy shit" at least 5 times digesting this update.
Wow, the twists and turns in this case!
What was that radiologist thinking? How did he not expect the plaintiffs attorney to not notice him transferring his personal assets?
If I were the ER doctor, I would have just let sleeping dogs lie and move on. I’m by no means a lawyer, but I’m hanging trouble envisioning a scenario where he wins his “bad faith” case.
One of the podcasts I listen to had a med map defense attorney talking about “nuclear verdicts.” He essentially said that although the law firms like to advertise these verdicts on their websites, what usually happens is that they negotiate with the defense team about what they and their client actually get (which often ends up being within the defendant’s policy limits). He said it’s extremely rare for a firm to go after a doctor’s personally assets unless they’re independently wealthy (ie they come from generational wealth, operate on famous athletes, have a tv show, etc). It’s typically not worth the time and expense.
"If I were the ER doctor, I would have just let sleeping dogs lie and move on. I’m by no means a lawyer, but I’m hanging trouble envisioning a scenario where he wins his “bad faith” case."
This is a logical next step for any of these cases that go for giant sums. Usually the plaintiff counsel will be onboard with it to, since they know the ED doc can't afford 45M, but the insurance company sure can. If you have any merit to your case (and there usually is an argument to be made in case with a giant verdict like this), the physician can settle/escape for a much lower sum by initiating the bad faith claim and then transfer rights to any verdict to the plaintiff, who then gets to go after the insurance directly for the larger sum. The plaintiff team will typically take over the case. It reminds me how financial debt can be sold --- capitalism is grand, ain't it?
I wasn't aware of any of that, thanks for explaining.
Yup, it's a fucked up hidey hole of medicine that no one teaches you until you're in the midst. Blogs like this are worth their weight in gold just to see how these things play out in the real world. This case was just a miscarriage on all fronts.
Another fun fact -- check your insurance policy. Who is the named policy holder? Do you the physician have the primary right to settle? If not, your insurance company / work group can force you to go to court even if you want to settle! Policy limit not high enough for a high risk case? Doesn't matter! Just another way a bad faith claim can be threatened/get started.
But how can he move on if he owes a $45 mil judgment, unless as per my other comment he can just declare bankruptcy
I'm not a lawyer, but this radiologist's attempted asset transfer scheme, in legal terms, is called a fraudulent conveyance. In my opinion, doctors get sued so often that they have to be proactive in protecting their assets, but this, too, is difficult to do. You can't really trust (pun intended) anyone.
The double standard is if you get run over by some drunk, unemployed, and uninsured bum and are seriously/permanently crippled, you get nothing.
And the other double standard is you can not sue your lawyers for legal malpractice, even if the special appointed judge to hear your case immediately opines on its existence. I tried but it was of no use. Even when the damages could be calculated by standard IRS methodology down to the penny with no intangible issues like pain and suffering, or projections of future expenses, the KY court declared my losses were "based on speculation."
I was referring specifically to moving assets *after* a verdict is rendered against you.
It’s not just protection from malpractice cases, but protection from liability in general. I personally am aware of a number of instances where physicians are subjected to significant verdicts due to the actions of family members or accidents, which have nothing to do with work, but it’s beyond the standard policy limit and results in significant financial expenses or hardships. Many juries will perceive that we have more resources than we may really have especially in the current environment we verdict size is actually increasing quite a bit. It is my understanding and believe that the long and short of it yes acid protection does work.
"Lawsuit, n. A machine which you go into as a pig and come out of as a sausage."
Ambrose Bierce -The Devil’s Dictionary
Seems to me that if the ER doc, the neurologist, and the radiologist had all just kept their cool and not slandered each other in the chart and lied about what happened and tried to throw each other under the bus, the case might have gone their way in a state where the bar is gross negligence rather than simple malpractice.
Not that I want bad medicine not to be punished but also 75M is a ridiculous nuclear verdict, it’s not justice to come after a new grad for 50M. None of us ever have that even if you gave us 5 lifetimes. I don’t think anyone set out to hurt this guy. They’re all just trying to do their jobs. I don’t know who will want to go into the field in the future if it means risks like this.
The finger-pointing and blaming in this case was the worst I've ever seen... and it's also the highest verdict I've seen. Makes you wonder if those things are causally connected.
I think there is an element of a panic-driven behavior by a normal doctor to do stupid things. I wonder, this ER doctor may really be a nice guy and reasonably competent, and in fact is a nicer guy than the radiologist or the neurologist, but being new to practice and fresh out of residency, he just panicked.
A parallel observation of men's behavior during war is made in the closing argument by the defense counsel Major Thomas in the Australian Film "Breaker Morant."
"The tragedy of war is not the acts abnormal men do during times of war, but the abnormal acts committed by otherwise normal men. "
This is a wild case for sure. I can't go fully into the details (the dots should be fairly easy to connect...) but I think its a poor look to describe the defense testimony as "so-called expert gets caught in his own dishonest scheme." I don't know if you have access to the full trial testimony but there is way more naunce to what the testimony was in court vs the edited clips that were pulled and woven together from several unrelated podcast episodes. Also its interesting that normally physicians names and employers are redacted in these posts yet this post pulls in information that makes the expert clearly identifiable (again the dots here are easy to connect). If allowed I'd be willing to post any/all testimony that I've ever given but I would suggest that when these are posted the experts should either be clearly identified or fully redacted for the sake of honesty and transparency. I think these are all tremendous write ups but just think it can be tough to accurately critique a colleagues testimony and integrity without showing all the details.
Thanks for the critique, I went back and re-read what I wrote and I actually agree with you. The language I used was too inflammatory and not entirely accurate. I have edited it to provide a more sober and de-identified analysis. I watched the relevant testimony online via Courtroom View Network (mostly long and boring but very interesting at a few key points). Happy to include additional info (or an insider's perspective!) if it is sent to me... definitely going to be sending more updates about this case anyway!
I really appreciate your willingness to hear me out. This case is fascinating and there is SO much that went on behind the scenes that isn't public but arguably should be. Thanks again for listening to my perspective and also for all the work you put into researching these cases.
Delaney you should cover this on the podcast. Would love to hear your side of it. Also talk about best states to practice to avoid crazy outcomes like this. Maybe bring someone from wealth management to see if assets can be protected against settlements like this preemptively
Very obvious especially to subscribers of the podcast. It seems the ER doctor had not actually signed his chart, and then added more information the next day before officially signing it? Or did he add an addendum? Because we all "modify" the chart before signing it, but an addendum is a bigger deal. Did they really go through the metadata to see when the ER doctor added more information to his chart?
Added more information the next day after he realized what happened, then signed it. Yes, they pulled the full audit trail and had exact times on when he documented specific things. The neurologist argued that the time stamps from the phone call and when the CTA results were signed meant that he couldn't have been told about it.
It’s very easy to audit chart access- I do it to check the spelling of peoples’ names when I have to document who I talked to. I can see who logged in and when on Cerner.
It's pretty sobering and makes you really think twice before you hit that "pend" button on your charts. I'm pretty sure Epic keeps a saved copy each time you hit this, so very easy to tell when you've added or deleted info between copies. Which is terrifying because how many times has a patient told you one thing, just to change it to the complete opposite later, or have their family reveal that they actually DID have X or didn't have Y (from a more reliable historian). In the hands of an unscrupulous attorney this could easily be used to paint you as falsifying information.
I usually put “late entry blah blah blah.” You can tell the difference between backtracking and trying to cover yourself… versus adding new information.
I think that would have helped the doc look more honest in this case.
From what I understand, every time you save a chart without signing it, there's a permanent record. If you type a sentence and delete it before saving it, there's no record of that. But every time you save it and come back to it later, that's now in the permanent record. Most docs have never seen what the audit trail looks like for an EMR, I know I certainly hadn't until this lawsuit.
It really depends on what EMR you use. I know that Epic keeps a very clear timestamped record of all your audits (signatures) as well as your pended charts. You can dig around and find them pretty easily yourself.
Same goes for when you added instructions to a patients AVS, put their level of stay, diagnosis... etc. Each piece of this could foreseeably be used against you.
I think back to a case you had a while about a young patient with chest pain -- one of the main points made by the plaintiff counsel was that the patient was discharged too quickly for there have been time for a full exam or for the doc to have given them due thought. In the same line, I could easily see a timestamped diagnosis being added moments after the chart being opened painted negatively by a plaintiff --- ie: you anchored in a diagnosis before you could even get the data on the patient. Of course ignoring any of the realities of how notes are actually constructed and finished during a busy ER shift.
Back to your point tho -- it's less clear about about Cerner -- I know for a fact that a few years ago it was a mess of gobbledygook that was nearly impossible to look through. I know for a fact it didn't have each pended copy of each "saved" note though -- or at least it didn't back then. One of the few positives of the "shitty" EMRs is probably that they aren't sophisticated enough to have that data, or store it in any meaningful way. But given how rapidly tech evolves, best to act as if they do.
Cases like this are terrifying, and salient exemplars that needle in between our gluts every single day while we try to practice good medicine. And that's nothing to say about their affect in the med-mal arena, where well intending docs with highly defensible cases are settling under/at policy limits simply to avoid any chance of this outcome. How many BS cases get settled just because it brings individual risk to zero? What's their effect on driving defensive medical practices, patient perception of medical practice, and plaintiff willingness to take on nearly any case just hoping to saber rattle the right person? Ugh, horrible all around.
This ED doc practiced good medicine and even did the LP that I know many/most others would have turfed to the admitting team. He recognized the risk and ordered the right test, consulted the right initial specialist. Unless the verbal consult to the neurologist was GROSSLY different than what any normal ED doc would say (ie: not mentioning that the onset of symptoms was AFTER a chiropractic maneuver) -- the neurologist should have been requesting and then following a CT angio head/neck, even if it somehow slipped the ED doc's mind. What is this nonsense about never even being told that a CTA was ordered? Say nothing of it's actual results and when they populated -- If it wasn't mentioned, the neurologist should have been recommending it (and then following it!) as the first second third and fourth test before any LP...
I'll admit by bias, but between this lines this case really reads like a new grad getting bullied by an older 'wiser' doc who didn't want to bother with this patient.
In my opinion, even if the ER doc forgot to mention the neck adjustment and called before the CTA was back, it's still not grossly negligent. If I recall correctly, gross negligence is basically "lack of even slight care or diligence", and this doc went to great lengths in taking care of this patient. There are certainly many things that he could have done better, but it was not gross negligence.
“The hospital is the only defendant that actually has the funds to pay $75,000,000.” The appeal to go after the hospital is like a bastardization of Karl Marx’s slogan, "From each according to his ability, to each according to his needs." In this case, from each according to his ability to pay…
What is the role of the chiropractor here? Is he off the hook bc the patient was already experiencing symptoms or is he just not worth legally pursuing versus the doctors who (mal)treated him?
Unless I’m conflating ths with a different medmalrevewer story, the chiropractor settled right away. That’s why they’re not part of the law suit.
How do you continue with life if you owe millions of dollars? I could never hope to attain assets - in that amount- even if i worked every day of my life
as Med Mal reviewer said, bad faith lawsuit. There's no way the plaintiff sees even a fraction of this if they actually continue to go after the ED doc. Unless family absolutely refuses, is retributive, etc (which I suppose is possible), it's almost a guarantee that plaintiff counsel will show them the best path to payout for both of them is to support the bad faith suit (which can then be transferred directly to the plaintiff, freeing the ED doc). If for some reason it failed or had no grounds, then some sort of backroom settlement with the ED doc is most likely --- also mentioned by MMR in another comment above
Apparently you file a bad faith lawsuit against your insurance company, or declare bankruptcy and start over.
The amounts of the verdict are crazy. Was this person a NFL player that was going to be worth 75 million dollars. I see this ending up with settlements from everyone involved, I'm not sure I know a lot of doctors that can pay a 45 million dollar verdict. I'm curious if bankruptcy would resolve this if the bad faith lawsuit doesn't work out. On a side note, his only asset is his house if he is joint owner with his wife that should protect them from losing their house hopefully.
This state has gross negligence standard (which in my opinion, the ER doctor was not grossly negligent despite the valid criticisms against him), but does not have a cap on non-economic damages. $46,000,000 of the verdict was for pain/suffering which, if I'm understanding correctly, fall under the non-economic damages that some states would not have allowed.
The $75 million is not based on his likely future earnings. It was the cost of his future medical care needs, along with the fair market value of what was taken from him and the pain of suffering of living life in a locked in state. How much money would it take for you to agree to be "locked in" for the rest of your life?
It was $0 for future earnings, $20,000,000 for future medical expenses, $9,000,000 for past medical expenses, $46,000,000 for future pain and suffering. There's no money I would take to be locked-in, although its interesting because studies of locked in people show that many are able to adapt psychologically despite their disability and still find satisfaction with life (example - https://pmc.ncbi.nlm.nih.gov/articles/PMC4506615/)
Thanks for the breakdown and the study. Very interesting. I’m a medical malpractice trial lawyer and was trying to shed light on what exactly non-economic damages are, in response to the earlier comment about the plaintiff not being an NFL player. It’s a difficult thing for jurors and the public in general to wrap their head around. I typically refer to it as the “fair market value” of what was taken from the plaintiff, and the fair market value of what the plaintiff has gone through and will go through for the rest of their life. Lost wages and lost future earning capacity are separate damages that, in my opinion, are in no way connected to the non-economic damages.
I appreciate your Substack. It’s very informative!
Thanks! I'm sure it's always a challenge to get the jury to understand these concepts. I haven't had many attorneys comment, I hope you'll leave more comments when you have legal insights or other perspectives that we may be blind to on the medical side of things.
Was this ED doc an employee of the hospital or part of a medical group contracted to work there?
I’m just curious as to how this case wooos translate to a situation where the ED was an employee (and thus presumably an agent of the hospital). Would the hospitals insurance policy + catastrophic coverage take care of everything and the ED physician would be financially relatively protected ?
I know the PA involved in the case. The PA was the only hospital employee and therefore kept on the suit. The stroke was completed on admission to the ICU.
I dont think you have to keep an employee on the case if you wanted to sue the hospital directly do you?
Yep
This got worse and worse with every paragraph.
I must say, there is definitely a difference between adding important information to a draft note before signing vs. editing an already signed note to hide an error - this appears to have been lost on the jury.
Fair enough, but when it's not done contemporaneously, is only done after finding out about the bad outcome, and is done in a way that could reasonably be construed as self-serving, I think it's a bad idea. At the very least I would contact the hospital's legal department and discuss with them before touching the chart at all. You'd rather be the doctor who forgot to write something down than the doctor who looks like they lied. One is an innocent error, one is malicious (or at least looks that way to the jury).
In my experience, and yes, I went through a few medical malpractice lawsuits and appeals, the Appeals Court will generally not disturb a jury's finding in the trial court as long as it is based on credible expert testimony. The Appellate Courts admit they have no expertise in medical standards of care or medical probabilities, or even with more dogmatic matters like appraisers' or accountants' valuations of property by which they can justify disturbing a trial court's jury decision. No legitimate accountant or appraiser would give a fair market value of $10 for a million-dollar property, so in this case, the radiologist's attempts to hide his assets after the verdict is outrageous. Even if he had tried to do it the very next day after this actual medical event, it would have been too late.
Generally, Appeals Courts overturn or reduce an award due to some legal technicality or insufficiency of evidence. You can't introduce new evidence on appeal.
And then there are, I have read, provisions for pre-trial high-low agreements between Plaintiffs and Defendants. A Defendant is thus protected against a catastrophic verdict in the event the Plaintiff wins, while the Defendant's med-mal insurer has agreed to a pretrial minimum settlement even if the Plaintiff loses. So who knows what really goes on in the Judge's chamber or between the Plaintiff and Defendant's lawyers?