Just reinforces the notion to me that society expects the impossible from ER doctors. And the continued existence of America’s pervasive and very righteous “somebody has to pay for this” medical legal culture. Like, sometimes it’s nobody’s fault guys…
There’s no evidence the patient had that PE during the first ER visit - a flipped T wave in III is hardly specific for PE - and even with this totally nonspecific EKG change his pre test probability of having a pulmonary embolism was **WELL BELOW** I repeat **WELL BELOW** 15% (preposterous that anyone would argue otherwise, not least the treasonous ER “expert” witness on the plaintiffs side).
This case is an abomination. Your interview with this juror demonstrates the delusional / and frankly magical thinking of outside, non medical people and their views on how things “should” work in a hospital. Their expectations are not grounded in the reality and are clouded by “shoulda woulda coulda” 20/20 hindsight, “in a perfect world” thinking.
The doctors discharge instructions were perfectly adequate, as was his documentation (plenty thoughtful and thorough). Completely asinine to say that the doctors instructions needed to be more specific given everything Ive said above.
Whole thing is absurd. Hammers home to reality of EM being a dead-in-the-water specialty and *certainly* not one you *ever* should be practicing in a non tort reformed state.
One hundred percent agree! Physician myself. This case is ridiculous and is the reason why we have the most expensive healthcare system in the world with mediocre outcomes.
100% agree. Only way as an ER physician to get around this is to just ct everyone who comes in the door with shortness of breath or chest pain. Same jury would have likely still found the provider at fault if a dimer came back negative. Only way to protect against this is be extremely conservative. No documentation is gonna protect you when a young 20 something year old ends up dead and you saw the patient in the ER a week earlier. Right or wrong laymen are going to think oh patient came in looking for help and you are a trained ER provider and they died. Someone needs to pay for this. The case is an abomination and I'd argue at least 50% of my fellow ER colleges would have missed this.
I think you are right that society expects the impossible from doctors. But I also think doctors put themselves on that pedestal. Then surrendered their authority to hospital administrators and third party, for profit entities.
Really remarkable insights. I'm grateful for you exploring this and for the juror's willingness to discuss their mindset. For the most part, this clarifies for me why the case proceeded the way it did.
Two things leave me uncomfortable:
1) The damages were apparently conjured out of thin air based on a number that, I guess, vibed well with 9 of the jurors. This gives some insight into how nuclear verdicts happen. That is, unpredictably, based on a handful of people's contemplation of the value of a life. And that's particularly scary for my field of Psychiatry, where the most common reason we are sued involves a death.
2) Return instructions that aren't carefully personalized aren't given real defensive weight because jurors bake it into the calculus that patients will ignore them. On one hand, I take the point regarding physicians striving to connect with patients, but this sounds like it waves away what would otherwise constitute contributory negligence from the plaintiff. If the tendency of patients is to ignore return instructions or not read their discharge instructions, I don't think the appropriate response is to essentially elevate the standard of care to compensate.
But why are ER doctors on the hook for discharge instructions that are subjectively considered “too verbose” for patients to read through? Yet then the next time we get sued for our discharge instructions being too abrupt, nondescript, and nonspecific. So which is it?
"..clear from the beginning that the plaintiff was going to win."
Unfortunately this statement from the juror shows the case was decided even before all the evidence and defense was presented. Tragically a 19 year old died and someone was going to pay, which I can understand. Also TWI in V1/III suggesting PE is not the standard of care.
My apologies, I can see why you interpreted the answer that way, but that is not correct. When I answered that question, it was in the context of what the jurors thought.
Until deliberations, I had no idea what the other jurors thought. We weren't allowed to discuss the case with anyone during trial. We were also instructed to not draw any conclusions until the case was fully presented (which I strived to do). So when I say it was clear from the beginning, that meant clear from the beginning of deliberations (being about two hours in after everyone had a chance to give their views); when I had a feel for what the other jurors thought and understood more of my views of the evidence. We deliberated for almost 9 hours at the end of an 11 day trial.
Well thank you for that clarification it's good to know that the emotion of the case wasn't the only deciding factor but that just means that you/jury are just wrong on the medicine. This mean the defense didn't correctly present the medicine or the prosecution was persuasive in wrongly linking a non-specific EKG finding to PE.
The reason ED Physicians are appalled with this verdict is we all see thousands of these patients per year: young healthy patient with normal vitals complaining of pleurisy in the setting of cough and don't obtain d-dimer's and or CTAs hench the standard of care was not violated. No other ED physician in our private group consisting of 22 doctors experience ranging from 8 to 45 years would have pursued PE with that EKG.
Based on Dr L's note there was no evidence PE was the most likely cause of this patients symptoms. The HPI boils down to 19 year old male with pleuritic chest pain in the setting of cough who was; not tachycardic, not hypoxic, PERC negative and Wells negative.
Based on your answers it seems you placed a lot of weight on the EKG changes which unfortunately are not specific to pulmonary embolism. I'm guessing the prosecution persued this linkage heavily?
T wave inversions (TWI) are not specific meaning they show up in a bunch of disease processes but are not indicative of a single one. TWI are found in NORMAL patients, LVH, repolarization, PE, COPD, idchemia, juveniles etc.
If you drill down on the PE association amongst undifferentiated patients it is low only showing up in about 11% of pts with known PE but these also were not young healthy patients were TWIs are often normal. Theres an even higher EKG PE Association s1q3t3 which was not present on his EKG but again not specifc.
Interestingly TWI in young patients are known as persistent juvenile T waves and TWI in lead III is a normal variant meaning if I saw this EKG I would not have recommended follow up for these "changes" because by and large these would be considered normal is this age group. (If it was a 55 year old that would be different)
You also stressed the importance of specific return precautions. I am curious to your thoughts as I typically document "return precautions discussed." I don't list them individually because they are extensive for each varying complaint and would significantly increase my documentation per patient. I could easily reiterate what those precautions would have been on the stand to the jury. Also in my ED we use complaint specific discharge instructions which have a section for return precautions. I always reinforce in my discharge instructions to reference that list because patients cannot remember everything we tell them.
Apologies for the long response but as ER physicians we are very frustrated with these kinds of verdicts where the majority of us would have done exactly as Dr L.
I appreciate your thorough response and I absolutely understand your frustration with the results of this trial. I have no doubt it must be frustrating.
My only goal with providing this information is to help medical providers gain insight from someone who was on the inside of one of these complicated cases. What each person chooses to learn from it is up them, but I hope it can help, one way or the other, in a positive way. I have no intention to defend myself or the jury but just to give information. I make no claim as to if the law should be the way it is or not.
I don't know if it would make you feel any better or not, literally all the points you made in regards to PE and those EKG results were brought up in trial. None of that was missed. But bear in mind that this wasn't the only argument being made by the plaintiff. The totality of the situation as I listed most items in an answer in the Q&A post. There were a lot of moving parts. As I said, it took 11 days over three weeks.
I think it may be helpful to understand what the jury was told to do and how we were told to do it. We were given a set of jury instructions, which is essentially a very analytical process of applying the facts and reaching a verdict. These were read to us by the judge over 45 minutes right before deliberations. Then the first thing we did in deliberations is spend another hour going back over them. I wanted to make sure everyone was in agreement of the analytical nature of our instructions and what every single instruction was telling us to do. I don't recall any appeals to emotion by any juror. Each juror had ample amounts of time to state their views on all the questions presented to us. I didn't let anyone remain silent or be talked over. It was as deliberative of a process as I knew how to create. I'd never been on a jury before.
I'd strongly encourage you to read through the jury instructions if this case is important to you. I think you'll gain a lot of useful insight.
I think instruction 8 (burden of proof - greater weight of the evidence) and instruction 19 (negligence - defined) since we were to apply instruction 8 to instruction 19 are the most applicable to our discussion, but I would recommend reading all of them.
Dude the teaching point here is to just scan any chest pain with t wave inversions. Will it lead to unnecessary radiation exposure? Yes. Will it cause cancers down the road in some unlucky individuals? Yes. Will it prevent you from getting unjustly sued? Well in this case yes. Can't sue for missing a PE if you ordered the gold standard test to rule out PE. Question is, will it save more people from dying of a PE on a population level that it kills from including a malignancy? That's uncertain, but we are incentived to scan a lot more now. Also I'm not entirely sure a negative D dimer would protect you from a jury like this because still there is a non zero chance of a false negative dimer.
There is a lot more harm that can be done by overscanning than potential malignancy risk. Resource utilization for one is something that physicians have a duty to manage. Also over burdening radiology will clog up the census and potentially lead to delay in other urgent findings that can lead to poor outcomes.
There is a lot more harm that can be done by overscanning than potential malignancy risk. Resource utilization for one is something that physicians have a duty to manage. Also over burdening radiology will clog up the census and potentially lead to delay in other urgent findings that can lead to poor outcomes.
True, but unfortunately, their point, which I don't think is necessarily incorrect, is that the harm will not be felt by the ED physician, whereas in this case, the decision to NOT pursue the scan directly hurt the ED physician.
I’m sorry but this might be the most arrogance I have ever seen. There is absolutely no reason to believe the pt had a PE during this encounter. Disgraceful.
The patient had COVID two weeks earlier, which is strongly associated with thromboembolic disease, and just now has developed chest pain, pleuritic chest pain, has EKG findings suggestive (although not definitive) of PE, and has a family history of thromboembolic disease. I believe this was not below the standard of care, but to say there is no reason to believe he had a PE at this encounter is not being honest with the facts. There are tons of strong indicators here.
What ekg findings? Frequent comments about “ekg changes” but I can’t find the first ekg to show changes. All I see is a single ekg with inverted t waves in pre cordial leads, and at this age it is more likely from persistent juvenile pattern than ischemia. Additionally there is no tachycardia.
What ekg findings? Frequent comments about “ekg changes” but I can’t find the first ekg to show changes. All I see is a single ekg with inverted t waves in pre cordial leads, and at this age it is more likely from persistent juvenile pattern than ischemia. Additionally there is no tachycardia.
This juror's replies, as well as many sample cases you've provided previously, should really drive home the point that generic, boiler-plate, documentation is not legally protective and potentially legally harmful. A lot of people love loading their documentation up with EPIC smartphrases ranging from differential diagnoses (every resident I know has had a differential for chest pain and GI bleed that was near encyclopedic in length but didn't spend nearly enough time discussing was was likely or unlikely), consent/risks, or discharge/return instructions.
Jurors are more sophisticated than we give them credit for and lawyers are really good at pointing out clear corner-cutting moves many of us do.
“That was encyclopedic in length but Didn’t spend nearly enough time discussing….”
You work in academia I’m gathering. Because your critique falls on deaf ears among busy community docs who see 4+pph by themselves without resident slave labor to help them. Have you worked in a busy community shop by yourself at all lately?
Let’s not perpetuate a culture of “there’s always more we can do / document”. With that view we’ll eventually be seeing 1 patient per shift. Something’s gotta give and the “you could always do more” mentality is not doing our already dead specialty any favors
By far, the most frequent feedback I give to my residents regarding their notes is to make them more concise and to the point (there are some attending colleagues I wish I could give this feedback too without them getting offended).
In the old days of handwritten notes, there was the problem of overly brief (and in some cases, illegible) assessment/plans that made it difficult to discern what was going on with the patient or the doctor's thought process.
Nowadays, with electronic records, we have the opposite problem: the headache-inducing wall of text and typed out verbal diarrhea that is also almost as difficult to interpret.
This juror makes a very good point about the fact that no patient should be expected to read through the reams of printed sheets they get.
I have not read something that made me this angry in a long time.
ER doc easily cleared the standard of care and wrote very solid documentation. Dude’s life is now probably ruined for doing exactly what 99% of ER docs in this country would do in the same situation. Tragic situation, but the patient’s death was not his fault.
The hubris of this juror to play armchair quarterback and apparently feel confident providing documentation and follow up guidance that differs so vastly from the standard practice in this country is mind-boggling.
I find the juror's rationale for dismissing the PERC rule to be very inadequate and disappointing. Waxing and waning symptoms, a two week timeline, T-wave inversions, the defendant's refusal to acknowledge the inversions on the stand, a spot on a cxr (??). None of these things would affect pretest probability above 15%. They're basically saying they determined pretest probability off of vibes.
They were given clear instructions how to calculate the monetary amounts. At face value, it wasn't "vibes" although I understand where that accusation comes from. We might not like how they arrived at the monetary amount, but they did follow the instructions they were given by the legal system.
Unless you're looking at a part of the instructions that I'm not, they were asked to conjure a monetary value for grief, loss of companionship, and pain/suffering. To me, even if it's the process sanctioned by law, that's vibe-based accounting. Almost literally, in fact, since the damages here were all based on values assigned to emotional reactions. You asked the juror about this and all they could really give you was, "$10 million is the number that got 9 out of 12 votes."
Non-vibe-based accounting, in my opinion, would involve more hard economics. Lost revenue, for example (as is often the favorite when the plaintiff is a high-earner or their survivor/s).
And I guess my obvious curiosity would be, if ED doctors are routinely in the business of making "saves" worth $10 million in emotional damage, why are they compensated $350-400k annually? Kind of my cynical side coming through, but I think it highlights the mismatch between what doctors earn when they are successful, versus what they are penalized when they fall short.
The juror spent weeks if not months dissecting every possible aspect of this case and hypothesized what a busy, trained professional should have concluded — who in reality was given minutes to consider what to do while incorporating clinical ‘judgment’.
The test should be what a reasonable person would do, not what someone could have done. We should just admit the system is flawed, do our best and somehow learn to live with it.
I am so interested to hear from the jury perspective. But it’s just crushing that they don’t understand medicine. And have no concept that additional testing has risks for radiation induced cancers, need for work up of incidentaloma, extra time in the er (potentially contributing to delays in care for other patients)
Just very sad. We need tort reform. Whether you believe this ER doc should have read that history and those t wave inversions into a higher pretest probability or not there is no way there should be a verdict above policy limits for a missed PE that may not have been present in the er on the day he was seen, for a patient who developed new serious symptoms after discharge and refused re evaluation for those symptoms.
It’s not clear it was discussed. It also feels like the defense failed to sew doubt in the timeline - it’s possible the patient did not have a pe when he was seen in the er and developed it later. Whatever happened it seems like this juror got the impression that those t waves indicated a pe that a reasonable physician would have found it.
Not only the risk of testing (I have a case of fatal contrast allergy reaction from a CT scan that I'll publish at some point), but also the risk of the treatment if you do end up finding a small PE (or worse case scenario, there's poor contrast timing and some artifact gets read as a PE). The single biggest theme I see in malpractice cases is related to bleeding and anticoagulation. People are very flippant about anticoagulation but it kills tons of people every year and spurts lots of med mal cases. To someone without the experience to have adequate perspective, it seems so easy to just diagnose and treat a PE, but the truth is that each step of this process is very risky.
I am impressed by the thoughtfulness of the juror. I don't agree with the verdict, because 1. All of the patient's complaints could easily be caused by Covid infection WITHOUT PE (including the CXR abnormality - early on, Covid would almost always cause infiltrates on CXR) and 2. It's not at all common knowledge about EM docs that TWI in leads V1 and III are indicative for PE.
However, I appreciate the juror taking the time to educate us on what goes on behind the scenes. The doctor should have admitted that there were TWIs on the EKG - that is undeniable. I'm hoping for the doctor's sake that at the end of the day the plaintiffs settle for policy limits, but I guess that depends on the likelihood of the case being overturned on appeal, which I know nothing about.
A “trial by peers” when those peers are the dumbest people on the planet. What an arrogantly stupid person. Med mal trials should be decided by a committee of actual experts, not “I do my own research” morons.
To be fair, jurors aren't really "I do my own research" people—or at least they shouldn't be. Their "research" is whatever is presented to them in the court room. That said, one challenging thing about the U.S. system is that it can be extremely hard to predict what a jury will latch onto ... they're asked to logically evaluate competing testimony, but sometimes they'll make a wrong inference or assumption, and since jury deliberations are (generally) private, that wrong inference might not be caught ... which just underscores the need for trial prep and careful questioning by a civil defense attorney. Still, I see the argument for getting rid of the "jury of peers" rule and using only experts, although that also carries issues. (Namely, intra-group sympathy.)
This really would illustrate to any physician that the deck is stacked against you.
The juror already states they knew the plaintiff was going to win in response 7. They already had this preconceived notion that since the guy died, someone was to blame. Someone was going to pay.
How long was the ED physician supposed to be on the hook after the visit? What if the guy died 4 weeks later? 3 weeks later? 8 weeks?
You have a bunch of lay people who think they can accurately apply clinical rules and decision making.
All this decision has guaranteed is that more physicians will practice CYA medicine. More CTs. More cancer risk down the line (because you won't get sued for the leukemia they develop 20 years later).
All these comments focus on documentation yet the real moral of the story is you just need to practice extremely conservative medicine now days if you don't want to risk this for better or worse. Almost every chest pain or shortness of breath will likely get a d dimer now. Positive? CTA chest and if refusal leave ama.
“I would say that everyone believed that there was no gross negligence on the part of Dr. L…” so why the hell are you assigning any blame toward him??? The foreman reveals why lay people are not equipped to handle malpractice cases. Frankly the guy is an idiot and perfectly revealed the jury’s heavy leaning on feelings rather than facts. This is a travesty on par with the NYT’s hatchet job on organ procurement
I feel your anger but I would appreciate it if you didn't call him names. He did a lot of work to do this interview and even if you disagree, it's not constructive feedback and actively discourages anyone else from coming forward to give similar interviews.
Gross negligence is not the same as negligence. You can assign blame as gross negligence, or you can assign it as negligence. In this case, the jury felt that the doctor was negligent but not grossly negligent, which is why the jury member phrased it that way.
Willful ignorance of how a jury thinks and comes to conclusions is a really bad idea if you intend to practice in an environment in which they can make you liable for $10,000,000. If you don't find this constructive and refuse to learn anything from people you disagree with, I'd encourage you to unsubscribe.
A lot of people in the comments talking about discharge instructions. Here's my patient perspective, which I also shared in the Reddit comments on the first post last month.
When I go to the opthalmologist, after he spends maybe 5-10 minutes looking at my retinas, he spends at least a full minute, at the end of every single appointment, reciting for me all the signs of retinal detachment, and emphasizing that I should call his office immediately for any of them, or failing that call 911. He doesn't just hand me a paper, rubber stamped with "return if symptoms get worse or fail to get better".
And even better, when I call his office about the listed symptoms -- which I happen to have done just recently, though a likely false alarm -- his desk staff immediately asked specific questions that were clearly from a rubric, then had a nurse call me back with further questions (and the option to make an immediate followup appointment if desired, but we both agreed it wasn't necessary.)
Granted, this is a specialist office, and it's going to be impossible to get the same quality of followup in an ED or UC. But if you hand me a paper that just says "return if symptoms worsen or fail to improve", I'm going to ask myself: is this what they meant? Is this bad enough? How bad is it? What symptoms count? And do I really want to sit in a waiting room for 4 fucking hours to find out?
Even in the best case where the patient diligently follows instructions and correctly determines which symptoms are significant, still some huge fraction of the time it's going to be a false alarm. Here the ophthalmologist also has an advantage: "if you see flashes of light, new floaters, or a dark shade over your vision" is describing symptoms which are hard to mistake for anything else, and -- while the first two are not specific to retinal detachment -- they are rare enough that it's not burdensome to call. If you want patients to obey return precautions, you need to give them something specific enough that they can act on it. If I feel like shit, "come back to the ER if you keep feeling like shit" doesn't do it. I feel like shit all the time. You need more specific indicators that a lay patient can clearly distinguish from normal life. (Maybe there aren't any. Then don't just write something vague! It doesn't do any good. If you must say "return if symptoms get worse or fail to get better", please at least give a timeframe. "You should be feeling much improved within 72 hours. If you still feel this sick by then, or you're not sure; or if you start feeling much worse then you do now, and it persists for at least 4 hours; then return to the ER.")
One other thing my opthalmologist writes in his after-visit instructions -- and says out loud, because patients listen better than they read! -- which I think is brilliant and I have never seen anywhere else:
"Call me immediately for [... list of symptoms omitted ...] or for any other problem with vision that is concerning to you, or that you mention to anyone else."
That "mention to anyone else" seems like a great attempt to answer the question (which every patient faced with return precautions must constantly consider): "Sure I feel a little off, but is this actually what they meant? Is this bad enough to be worth coming in for?"
Thanks for the insight from the patient side! I think that will be helpful for a lot of doctors who are readers. It is interesting because the ophthalmologists seem to be switching away from retinal detachment as a "must be deal with with right this second" emergency, and more towards "this can be handled in the next day or two" emergency. (https://expertwitness.substack.com/p/retinal-detachment).
I will say I think the subspecialists have an advantage over the generalists like ER doctors in this regard. They have relatively limited emergencies that they deal with, and the symptoms of them are fairly narrow. In the ED, a patient is being discharged with chest pain or shortness of breath, and the list of possible diseases that could cause those (even if all the tests are negative!) is still quite large, and each of those diseases has numerous possible symptoms it can cause. So you can easily get to hundreds of possible symptoms to look out for, which isn't really practical from the doctor side or patient side. I think that's why a lot of times ED return precautions are more geared toward a vague "if anything gets worse, come back"... it's just the most intellectually honest thing to say, although I can see your point that it seems less actionable and concrete.
I am curious if the case would have concluded differently if:
1) There had been expert testimony that appropriately conveyed that at least 50% of practicing emergency physicians would have also applied PERC to rule out pulmonary embolism in this case. Because I can assure you, if this patient had presented to any other ED or seen any other ED physician, the outcomes very likely would have been the same (and if someone did test this person for a PE, it wouldn't have been because of the EKG; just their own practice pattern).
2) Expert testimony showed that the patient's T wave inversions did not, in fact, make the patient's pre-test probability 15% or greater for pulmonary embolism. If they were, they'd be included in any of the multitude of scoring criteria for ruling out Pulmonary Embolisms.
If the juror is reading this and wonders about some of the backlash about this case, it's because the both of the above statements are true.
Generally speaking, custom is not conclusive as to negligence, but it is evidence of negligence/non-negligence. In other words, the fact that there is an industry custom does not conclusively establish that adherence to said custom was non-negligent (think: the fact that cigarette companies all understated the health risks of cigarettes did not establish that their understatement was non-negligent), in the same sense that deviation from an industry custom does not conclusively establish that the conduct at issue was negligent. But the fact that a custom exists *can* be evidence of negligence/non-negligence—a factor to consider rather than something dispositive.
THAT SAID: In the context of malpractice, many states have a standard that is higher than simple negligence. The heightened standard varies—some really high-burden states will say things like (paraphrasing) "no other prudent medical provider would have performed the same way" (which is, of course, a very high standard).
Just reinforces the notion to me that society expects the impossible from ER doctors. And the continued existence of America’s pervasive and very righteous “somebody has to pay for this” medical legal culture. Like, sometimes it’s nobody’s fault guys…
There’s no evidence the patient had that PE during the first ER visit - a flipped T wave in III is hardly specific for PE - and even with this totally nonspecific EKG change his pre test probability of having a pulmonary embolism was **WELL BELOW** I repeat **WELL BELOW** 15% (preposterous that anyone would argue otherwise, not least the treasonous ER “expert” witness on the plaintiffs side).
This case is an abomination. Your interview with this juror demonstrates the delusional / and frankly magical thinking of outside, non medical people and their views on how things “should” work in a hospital. Their expectations are not grounded in the reality and are clouded by “shoulda woulda coulda” 20/20 hindsight, “in a perfect world” thinking.
The doctors discharge instructions were perfectly adequate, as was his documentation (plenty thoughtful and thorough). Completely asinine to say that the doctors instructions needed to be more specific given everything Ive said above.
Whole thing is absurd. Hammers home to reality of EM being a dead-in-the-water specialty and *certainly* not one you *ever* should be practicing in a non tort reformed state.
/endrant
One hundred percent agree! Physician myself. This case is ridiculous and is the reason why we have the most expensive healthcare system in the world with mediocre outcomes.
100% agree. Only way as an ER physician to get around this is to just ct everyone who comes in the door with shortness of breath or chest pain. Same jury would have likely still found the provider at fault if a dimer came back negative. Only way to protect against this is be extremely conservative. No documentation is gonna protect you when a young 20 something year old ends up dead and you saw the patient in the ER a week earlier. Right or wrong laymen are going to think oh patient came in looking for help and you are a trained ER provider and they died. Someone needs to pay for this. The case is an abomination and I'd argue at least 50% of my fellow ER colleges would have missed this.
I think you are right that society expects the impossible from doctors. But I also think doctors put themselves on that pedestal. Then surrendered their authority to hospital administrators and third party, for profit entities.
Really remarkable insights. I'm grateful for you exploring this and for the juror's willingness to discuss their mindset. For the most part, this clarifies for me why the case proceeded the way it did.
Two things leave me uncomfortable:
1) The damages were apparently conjured out of thin air based on a number that, I guess, vibed well with 9 of the jurors. This gives some insight into how nuclear verdicts happen. That is, unpredictably, based on a handful of people's contemplation of the value of a life. And that's particularly scary for my field of Psychiatry, where the most common reason we are sued involves a death.
2) Return instructions that aren't carefully personalized aren't given real defensive weight because jurors bake it into the calculus that patients will ignore them. On one hand, I take the point regarding physicians striving to connect with patients, but this sounds like it waves away what would otherwise constitute contributory negligence from the plaintiff. If the tendency of patients is to ignore return instructions or not read their discharge instructions, I don't think the appropriate response is to essentially elevate the standard of care to compensate.
But why are ER doctors on the hook for discharge instructions that are subjectively considered “too verbose” for patients to read through? Yet then the next time we get sued for our discharge instructions being too abrupt, nondescript, and nonspecific. So which is it?
The foreman mentioned use of heparin against clot. Heparin does not dissolve existing clots. Alteplase would be drug of choice.
"..clear from the beginning that the plaintiff was going to win."
Unfortunately this statement from the juror shows the case was decided even before all the evidence and defense was presented. Tragically a 19 year old died and someone was going to pay, which I can understand. Also TWI in V1/III suggesting PE is not the standard of care.
My apologies, I can see why you interpreted the answer that way, but that is not correct. When I answered that question, it was in the context of what the jurors thought.
Until deliberations, I had no idea what the other jurors thought. We weren't allowed to discuss the case with anyone during trial. We were also instructed to not draw any conclusions until the case was fully presented (which I strived to do). So when I say it was clear from the beginning, that meant clear from the beginning of deliberations (being about two hours in after everyone had a chance to give their views); when I had a feel for what the other jurors thought and understood more of my views of the evidence. We deliberated for almost 9 hours at the end of an 11 day trial.
I hope that is more clear.
Well thank you for that clarification it's good to know that the emotion of the case wasn't the only deciding factor but that just means that you/jury are just wrong on the medicine. This mean the defense didn't correctly present the medicine or the prosecution was persuasive in wrongly linking a non-specific EKG finding to PE.
The reason ED Physicians are appalled with this verdict is we all see thousands of these patients per year: young healthy patient with normal vitals complaining of pleurisy in the setting of cough and don't obtain d-dimer's and or CTAs hench the standard of care was not violated. No other ED physician in our private group consisting of 22 doctors experience ranging from 8 to 45 years would have pursued PE with that EKG.
Based on Dr L's note there was no evidence PE was the most likely cause of this patients symptoms. The HPI boils down to 19 year old male with pleuritic chest pain in the setting of cough who was; not tachycardic, not hypoxic, PERC negative and Wells negative.
Based on your answers it seems you placed a lot of weight on the EKG changes which unfortunately are not specific to pulmonary embolism. I'm guessing the prosecution persued this linkage heavily?
T wave inversions (TWI) are not specific meaning they show up in a bunch of disease processes but are not indicative of a single one. TWI are found in NORMAL patients, LVH, repolarization, PE, COPD, idchemia, juveniles etc.
If you drill down on the PE association amongst undifferentiated patients it is low only showing up in about 11% of pts with known PE but these also were not young healthy patients were TWIs are often normal. Theres an even higher EKG PE Association s1q3t3 which was not present on his EKG but again not specifc.
Interestingly TWI in young patients are known as persistent juvenile T waves and TWI in lead III is a normal variant meaning if I saw this EKG I would not have recommended follow up for these "changes" because by and large these would be considered normal is this age group. (If it was a 55 year old that would be different)
You also stressed the importance of specific return precautions. I am curious to your thoughts as I typically document "return precautions discussed." I don't list them individually because they are extensive for each varying complaint and would significantly increase my documentation per patient. I could easily reiterate what those precautions would have been on the stand to the jury. Also in my ED we use complaint specific discharge instructions which have a section for return precautions. I always reinforce in my discharge instructions to reference that list because patients cannot remember everything we tell them.
Apologies for the long response but as ER physicians we are very frustrated with these kinds of verdicts where the majority of us would have done exactly as Dr L.
I appreciate your thorough response and I absolutely understand your frustration with the results of this trial. I have no doubt it must be frustrating.
My only goal with providing this information is to help medical providers gain insight from someone who was on the inside of one of these complicated cases. What each person chooses to learn from it is up them, but I hope it can help, one way or the other, in a positive way. I have no intention to defend myself or the jury but just to give information. I make no claim as to if the law should be the way it is or not.
I don't know if it would make you feel any better or not, literally all the points you made in regards to PE and those EKG results were brought up in trial. None of that was missed. But bear in mind that this wasn't the only argument being made by the plaintiff. The totality of the situation as I listed most items in an answer in the Q&A post. There were a lot of moving parts. As I said, it took 11 days over three weeks.
I think it may be helpful to understand what the jury was told to do and how we were told to do it. We were given a set of jury instructions, which is essentially a very analytical process of applying the facts and reaching a verdict. These were read to us by the judge over 45 minutes right before deliberations. Then the first thing we did in deliberations is spend another hour going back over them. I wanted to make sure everyone was in agreement of the analytical nature of our instructions and what every single instruction was telling us to do. I don't recall any appeals to emotion by any juror. Each juror had ample amounts of time to state their views on all the questions presented to us. I didn't let anyone remain silent or be talked over. It was as deliberative of a process as I knew how to create. I'd never been on a jury before.
I'd strongly encourage you to read through the jury instructions if this case is important to you. I think you'll gain a lot of useful insight.
I think instruction 8 (burden of proof - greater weight of the evidence) and instruction 19 (negligence - defined) since we were to apply instruction 8 to instruction 19 are the most applicable to our discussion, but I would recommend reading all of them.
Dude the teaching point here is to just scan any chest pain with t wave inversions. Will it lead to unnecessary radiation exposure? Yes. Will it cause cancers down the road in some unlucky individuals? Yes. Will it prevent you from getting unjustly sued? Well in this case yes. Can't sue for missing a PE if you ordered the gold standard test to rule out PE. Question is, will it save more people from dying of a PE on a population level that it kills from including a malignancy? That's uncertain, but we are incentived to scan a lot more now. Also I'm not entirely sure a negative D dimer would protect you from a jury like this because still there is a non zero chance of a false negative dimer.
There is a lot more harm that can be done by overscanning than potential malignancy risk. Resource utilization for one is something that physicians have a duty to manage. Also over burdening radiology will clog up the census and potentially lead to delay in other urgent findings that can lead to poor outcomes.
There is a lot more harm that can be done by overscanning than potential malignancy risk. Resource utilization for one is something that physicians have a duty to manage. Also over burdening radiology will clog up the census and potentially lead to delay in other urgent findings that can lead to poor outcomes.
True, but unfortunately, their point, which I don't think is necessarily incorrect, is that the harm will not be felt by the ED physician, whereas in this case, the decision to NOT pursue the scan directly hurt the ED physician.
I’m sorry but this might be the most arrogance I have ever seen. There is absolutely no reason to believe the pt had a PE during this encounter. Disgraceful.
The patient had COVID two weeks earlier, which is strongly associated with thromboembolic disease, and just now has developed chest pain, pleuritic chest pain, has EKG findings suggestive (although not definitive) of PE, and has a family history of thromboembolic disease. I believe this was not below the standard of care, but to say there is no reason to believe he had a PE at this encounter is not being honest with the facts. There are tons of strong indicators here.
What ekg findings? Frequent comments about “ekg changes” but I can’t find the first ekg to show changes. All I see is a single ekg with inverted t waves in pre cordial leads, and at this age it is more likely from persistent juvenile pattern than ischemia. Additionally there is no tachycardia.
What ekg findings? Frequent comments about “ekg changes” but I can’t find the first ekg to show changes. All I see is a single ekg with inverted t waves in pre cordial leads, and at this age it is more likely from persistent juvenile pattern than ischemia. Additionally there is no tachycardia.
This jury member reads to me as a bit arrogant
This juror's replies, as well as many sample cases you've provided previously, should really drive home the point that generic, boiler-plate, documentation is not legally protective and potentially legally harmful. A lot of people love loading their documentation up with EPIC smartphrases ranging from differential diagnoses (every resident I know has had a differential for chest pain and GI bleed that was near encyclopedic in length but didn't spend nearly enough time discussing was was likely or unlikely), consent/risks, or discharge/return instructions.
Jurors are more sophisticated than we give them credit for and lawyers are really good at pointing out clear corner-cutting moves many of us do.
“That was encyclopedic in length but Didn’t spend nearly enough time discussing….”
You work in academia I’m gathering. Because your critique falls on deaf ears among busy community docs who see 4+pph by themselves without resident slave labor to help them. Have you worked in a busy community shop by yourself at all lately?
Let’s not perpetuate a culture of “there’s always more we can do / document”. With that view we’ll eventually be seeing 1 patient per shift. Something’s gotta give and the “you could always do more” mentality is not doing our already dead specialty any favors
By far, the most frequent feedback I give to my residents regarding their notes is to make them more concise and to the point (there are some attending colleagues I wish I could give this feedback too without them getting offended).
In the old days of handwritten notes, there was the problem of overly brief (and in some cases, illegible) assessment/plans that made it difficult to discern what was going on with the patient or the doctor's thought process.
Nowadays, with electronic records, we have the opposite problem: the headache-inducing wall of text and typed out verbal diarrhea that is also almost as difficult to interpret.
This juror makes a very good point about the fact that no patient should be expected to read through the reams of printed sheets they get.
Ruined a doctor’s life over a decision that 90% of ER doctors would have made.
I’ve never thought of tort reform as more urgent since reading this guy’s frankly nonsensical thoughts.
Horrifying.
Totally agree.
I have not read something that made me this angry in a long time.
ER doc easily cleared the standard of care and wrote very solid documentation. Dude’s life is now probably ruined for doing exactly what 99% of ER docs in this country would do in the same situation. Tragic situation, but the patient’s death was not his fault.
The hubris of this juror to play armchair quarterback and apparently feel confident providing documentation and follow up guidance that differs so vastly from the standard practice in this country is mind-boggling.
I find the juror's rationale for dismissing the PERC rule to be very inadequate and disappointing. Waxing and waning symptoms, a two week timeline, T-wave inversions, the defendant's refusal to acknowledge the inversions on the stand, a spot on a cxr (??). None of these things would affect pretest probability above 15%. They're basically saying they determined pretest probability off of vibes.
They determined the monetary amount off vibes as well.
They were given clear instructions how to calculate the monetary amounts. At face value, it wasn't "vibes" although I understand where that accusation comes from. We might not like how they arrived at the monetary amount, but they did follow the instructions they were given by the legal system.
Unless you're looking at a part of the instructions that I'm not, they were asked to conjure a monetary value for grief, loss of companionship, and pain/suffering. To me, even if it's the process sanctioned by law, that's vibe-based accounting. Almost literally, in fact, since the damages here were all based on values assigned to emotional reactions. You asked the juror about this and all they could really give you was, "$10 million is the number that got 9 out of 12 votes."
Non-vibe-based accounting, in my opinion, would involve more hard economics. Lost revenue, for example (as is often the favorite when the plaintiff is a high-earner or their survivor/s).
And I guess my obvious curiosity would be, if ED doctors are routinely in the business of making "saves" worth $10 million in emotional damage, why are they compensated $350-400k annually? Kind of my cynical side coming through, but I think it highlights the mismatch between what doctors earn when they are successful, versus what they are penalized when they fall short.
The juror spent weeks if not months dissecting every possible aspect of this case and hypothesized what a busy, trained professional should have concluded — who in reality was given minutes to consider what to do while incorporating clinical ‘judgment’.
The test should be what a reasonable person would do, not what someone could have done. We should just admit the system is flawed, do our best and somehow learn to live with it.
I am so interested to hear from the jury perspective. But it’s just crushing that they don’t understand medicine. And have no concept that additional testing has risks for radiation induced cancers, need for work up of incidentaloma, extra time in the er (potentially contributing to delays in care for other patients)
Just very sad. We need tort reform. Whether you believe this ER doc should have read that history and those t wave inversions into a higher pretest probability or not there is no way there should be a verdict above policy limits for a missed PE that may not have been present in the er on the day he was seen, for a patient who developed new serious symptoms after discharge and refused re evaluation for those symptoms.
If the jurors weren't told the risk of additional testing ... that'd be a huge error on the part of the defense team.
It’s not clear it was discussed. It also feels like the defense failed to sew doubt in the timeline - it’s possible the patient did not have a pe when he was seen in the er and developed it later. Whatever happened it seems like this juror got the impression that those t waves indicated a pe that a reasonable physician would have found it.
Not only the risk of testing (I have a case of fatal contrast allergy reaction from a CT scan that I'll publish at some point), but also the risk of the treatment if you do end up finding a small PE (or worse case scenario, there's poor contrast timing and some artifact gets read as a PE). The single biggest theme I see in malpractice cases is related to bleeding and anticoagulation. People are very flippant about anticoagulation but it kills tons of people every year and spurts lots of med mal cases. To someone without the experience to have adequate perspective, it seems so easy to just diagnose and treat a PE, but the truth is that each step of this process is very risky.
I am impressed by the thoughtfulness of the juror. I don't agree with the verdict, because 1. All of the patient's complaints could easily be caused by Covid infection WITHOUT PE (including the CXR abnormality - early on, Covid would almost always cause infiltrates on CXR) and 2. It's not at all common knowledge about EM docs that TWI in leads V1 and III are indicative for PE.
However, I appreciate the juror taking the time to educate us on what goes on behind the scenes. The doctor should have admitted that there were TWIs on the EKG - that is undeniable. I'm hoping for the doctor's sake that at the end of the day the plaintiffs settle for policy limits, but I guess that depends on the likelihood of the case being overturned on appeal, which I know nothing about.
A “trial by peers” when those peers are the dumbest people on the planet. What an arrogantly stupid person. Med mal trials should be decided by a committee of actual experts, not “I do my own research” morons.
To be fair, jurors aren't really "I do my own research" people—or at least they shouldn't be. Their "research" is whatever is presented to them in the court room. That said, one challenging thing about the U.S. system is that it can be extremely hard to predict what a jury will latch onto ... they're asked to logically evaluate competing testimony, but sometimes they'll make a wrong inference or assumption, and since jury deliberations are (generally) private, that wrong inference might not be caught ... which just underscores the need for trial prep and careful questioning by a civil defense attorney. Still, I see the argument for getting rid of the "jury of peers" rule and using only experts, although that also carries issues. (Namely, intra-group sympathy.)
This really would illustrate to any physician that the deck is stacked against you.
The juror already states they knew the plaintiff was going to win in response 7. They already had this preconceived notion that since the guy died, someone was to blame. Someone was going to pay.
How long was the ED physician supposed to be on the hook after the visit? What if the guy died 4 weeks later? 3 weeks later? 8 weeks?
You have a bunch of lay people who think they can accurately apply clinical rules and decision making.
All this decision has guaranteed is that more physicians will practice CYA medicine. More CTs. More cancer risk down the line (because you won't get sued for the leukemia they develop 20 years later).
All these comments focus on documentation yet the real moral of the story is you just need to practice extremely conservative medicine now days if you don't want to risk this for better or worse. Almost every chest pain or shortness of breath will likely get a d dimer now. Positive? CTA chest and if refusal leave ama.
“I would say that everyone believed that there was no gross negligence on the part of Dr. L…” so why the hell are you assigning any blame toward him??? The foreman reveals why lay people are not equipped to handle malpractice cases. Frankly the guy is an idiot and perfectly revealed the jury’s heavy leaning on feelings rather than facts. This is a travesty on par with the NYT’s hatchet job on organ procurement
I feel your anger but I would appreciate it if you didn't call him names. He did a lot of work to do this interview and even if you disagree, it's not constructive feedback and actively discourages anyone else from coming forward to give similar interviews.
Gross negligence is not the same as negligence. You can assign blame as gross negligence, or you can assign it as negligence. In this case, the jury felt that the doctor was negligent but not grossly negligent, which is why the jury member phrased it that way.
Willful ignorance of how a jury thinks and comes to conclusions is a really bad idea if you intend to practice in an environment in which they can make you liable for $10,000,000. If you don't find this constructive and refuse to learn anything from people you disagree with, I'd encourage you to unsubscribe.
Actually jurors coming forward like this can be helpful in preparing a defense in future cases, just as mock trials with test juries can be helpful.
A lot of people in the comments talking about discharge instructions. Here's my patient perspective, which I also shared in the Reddit comments on the first post last month.
When I go to the opthalmologist, after he spends maybe 5-10 minutes looking at my retinas, he spends at least a full minute, at the end of every single appointment, reciting for me all the signs of retinal detachment, and emphasizing that I should call his office immediately for any of them, or failing that call 911. He doesn't just hand me a paper, rubber stamped with "return if symptoms get worse or fail to get better".
And even better, when I call his office about the listed symptoms -- which I happen to have done just recently, though a likely false alarm -- his desk staff immediately asked specific questions that were clearly from a rubric, then had a nurse call me back with further questions (and the option to make an immediate followup appointment if desired, but we both agreed it wasn't necessary.)
Granted, this is a specialist office, and it's going to be impossible to get the same quality of followup in an ED or UC. But if you hand me a paper that just says "return if symptoms worsen or fail to improve", I'm going to ask myself: is this what they meant? Is this bad enough? How bad is it? What symptoms count? And do I really want to sit in a waiting room for 4 fucking hours to find out?
Even in the best case where the patient diligently follows instructions and correctly determines which symptoms are significant, still some huge fraction of the time it's going to be a false alarm. Here the ophthalmologist also has an advantage: "if you see flashes of light, new floaters, or a dark shade over your vision" is describing symptoms which are hard to mistake for anything else, and -- while the first two are not specific to retinal detachment -- they are rare enough that it's not burdensome to call. If you want patients to obey return precautions, you need to give them something specific enough that they can act on it. If I feel like shit, "come back to the ER if you keep feeling like shit" doesn't do it. I feel like shit all the time. You need more specific indicators that a lay patient can clearly distinguish from normal life. (Maybe there aren't any. Then don't just write something vague! It doesn't do any good. If you must say "return if symptoms get worse or fail to get better", please at least give a timeframe. "You should be feeling much improved within 72 hours. If you still feel this sick by then, or you're not sure; or if you start feeling much worse then you do now, and it persists for at least 4 hours; then return to the ER.")
One other thing my opthalmologist writes in his after-visit instructions -- and says out loud, because patients listen better than they read! -- which I think is brilliant and I have never seen anywhere else:
"Call me immediately for [... list of symptoms omitted ...] or for any other problem with vision that is concerning to you, or that you mention to anyone else."
That "mention to anyone else" seems like a great attempt to answer the question (which every patient faced with return precautions must constantly consider): "Sure I feel a little off, but is this actually what they meant? Is this bad enough to be worth coming in for?"
Thanks for the insight from the patient side! I think that will be helpful for a lot of doctors who are readers. It is interesting because the ophthalmologists seem to be switching away from retinal detachment as a "must be deal with with right this second" emergency, and more towards "this can be handled in the next day or two" emergency. (https://expertwitness.substack.com/p/retinal-detachment).
I will say I think the subspecialists have an advantage over the generalists like ER doctors in this regard. They have relatively limited emergencies that they deal with, and the symptoms of them are fairly narrow. In the ED, a patient is being discharged with chest pain or shortness of breath, and the list of possible diseases that could cause those (even if all the tests are negative!) is still quite large, and each of those diseases has numerous possible symptoms it can cause. So you can easily get to hundreds of possible symptoms to look out for, which isn't really practical from the doctor side or patient side. I think that's why a lot of times ED return precautions are more geared toward a vague "if anything gets worse, come back"... it's just the most intellectually honest thing to say, although I can see your point that it seems less actionable and concrete.
Thanks!
I am curious if the case would have concluded differently if:
1) There had been expert testimony that appropriately conveyed that at least 50% of practicing emergency physicians would have also applied PERC to rule out pulmonary embolism in this case. Because I can assure you, if this patient had presented to any other ED or seen any other ED physician, the outcomes very likely would have been the same (and if someone did test this person for a PE, it wouldn't have been because of the EKG; just their own practice pattern).
2) Expert testimony showed that the patient's T wave inversions did not, in fact, make the patient's pre-test probability 15% or greater for pulmonary embolism. If they were, they'd be included in any of the multitude of scoring criteria for ruling out Pulmonary Embolisms.
If the juror is reading this and wonders about some of the backlash about this case, it's because the both of the above statements are true.
I can ... sort-of answer your first question.
Generally speaking, custom is not conclusive as to negligence, but it is evidence of negligence/non-negligence. In other words, the fact that there is an industry custom does not conclusively establish that adherence to said custom was non-negligent (think: the fact that cigarette companies all understated the health risks of cigarettes did not establish that their understatement was non-negligent), in the same sense that deviation from an industry custom does not conclusively establish that the conduct at issue was negligent. But the fact that a custom exists *can* be evidence of negligence/non-negligence—a factor to consider rather than something dispositive.
THAT SAID: In the context of malpractice, many states have a standard that is higher than simple negligence. The heightened standard varies—some really high-burden states will say things like (paraphrasing) "no other prudent medical provider would have performed the same way" (which is, of course, a very high standard).