Speaker 1: You are listening to Your Practice Made Perfect: support, protection, and advice for practicing medical professionals, brought to you by SVMIC.


J. Baugh: Hello, everyone, and welcome to this week's episode of Your Practice Made Perfect. My name is J. Baugh, and I'll be your host for this episode. Today, we're going to take a look at one of our closed claim files. I feel like we can always learn something in looking at these files, maybe things that were done well and maybe sometimes things that could have been done a little differently. Today, we have Katy Smith back with us. Katy, welcome.


Katy: Hey, J. Thanks for having me.


J. Baugh: Well, thank you for being here. Katy and I are both senior claims attorneys here at SVMIC. Katy has been here for 13 years, and I've been here for 18 years, so we've seen a lot of cases. So let's go ahead and get into one of these cases. You ready, Katy?


Katy: Let's do it.


J. Baugh: Okay. Today, we're going to discuss a case involving a 58 year old female who was admitted to the ICU due to shortness of breath, which required intubation. She was diagnosed with congestive heart failure, pneumonia, renal insufficiency, infection, and respiratory failure. Pulmonary medicine, cardiology, infectious disease, and nephrology were all consulted. The patient's condition began to deteriorate, and her oxygen saturation level went down. It was believed that there might be a cuff leak. Neither the pulmonologists nor the respiratory therapists were readily available. This is not a good situation. This patient had a lot of really bad stuff going on, and now the pulmonologist nor the respiratory therapist are available, which makes a scary situation even scarier.


Katy: That's right. And so, you have an ICU nurse who's trying to take care of this patient who's rapidly deteriorating, and we don't know exactly what happened of course, but ultimately she calls an emergency room physician and asks them for help. She needs the patient to be re-intubated. The emergency room physician initially responded, quote, "This is not my job," end quote.


J. Baugh: That's not good.


Katy: Not good, not good. Somehow apparently the ICU nurse contacted the pulmonologist again, who is offsite and who would be the one who would have responsibility for managing the intubation. And the pulmonologist contacted the emergency room physician, persuaded the ER doctor to go to the ICU and re-intubate the patient. The ER physician did that, and the patient was stabilized. Unfortunately though, she coded subsequently. She was intubated again, but she died within the hour. So, she had clearly a bad outcome.


J. Baugh: Yeah. This really is a terrible situation for a few different reasons. The patient had all of these medical problems going against her. She had congestive heart failure, pneumonia, renal insufficiency, infection, respiratory failure. So, she was in terrible shape because of the medical problems that she was dealing with, and then she also had the problem of the fact that her pulmonologist was not available, and so they had to ask the ER physician to step in. And unfortunately any attempts to save the patient were unsuccessful. The case goes to trial after some unsuccessful negotiations to try to settle the case, which is frustrating when you're in a situation when you would like to settle a case, but for various reasons you can't. So, Katy, let's talk about the case and how it unfolded in the legal system.


Katy: Right. Not surprising that a lawsuit was filed under these circumstances. So, the case was investigated, defended. We've talked about that on prior episodes. And apparently the defense attorneys were able to amass a fairly strong defense in the case, focusing on the medicine. They were able to get expert support for the care that was provided to the patient. Interestingly, they were also able to get some causation expert support. In medical malpractice cases, you have to, as a defendant, establish both that you complied with the standard of care in your defense of the patient and also that your care did not cause or contribute to the injury or the death of the patient.


J. Baugh: That's right. The plaintiff has to not only prove that there was a deviation from the standard of care, but they also have to prove causation. Some people who look at medical malpractice cases think that once you've determined that there's been a deviation from the standard of care, that that's it, but that isn't the case.


Katy: It isn't it.


J. Baugh: You also have to prove causation.


Katy: That is actually this case. The defense attorneys were able to find expert support. Well, first of all, they were able to determine that the cause of death, the patient's death, was unrelated to the intubation, and they were able to find expert support for that. Apparently, the defense experts even opine that the patient was dying before the ER physician ever became involved. So, this is otherwise, other than the ER physician's comment that we're going to discuss in just a minute, probably a defensible case.


J. Baugh: That's right. And the autopsy that was done on the patient provided evidence that supported what the defense expert was saying about the patient actually dying before the ER physician became involved. The autopsy report identified the cause of death as pulmonary edema and heart failure. So, you not only had an expert who opined as to the cause of death, but then you have evidence from the autopsy itself that supports what the defense expert is saying.


Katy: Right. Which is very helpful obviously. It's independent. It's objective evidence. If you're a juror, it's not an opinion that's being put forth by either side. It's just it is what it is. But then we have our weakness, our real weakness in the case, which is our defendant, emergency room physician. One of the most important things in a lawsuit is the defendant doctor and how that defendant doctor is received by the jury. Here we have an emergency room physician who was asked to help a patient, and his initial response was, "No." That's a challenge.


J. Baugh: Yeah. It really is. You kind of wonder why the ER physician initially responded with, "That is not my job." And that creates what you've probably seen in cases, as well as I have, something that we call the mad factor.


Katy: Agree. Yes.


J. Baugh: That is very difficult to overcome the mad factor. And that's a situation in which you have the medicine on your side, but because of the personality or maybe because of something that was said between the healthcare providers, that the jury then becomes mad at what happened, and it becomes difficult for them to focus on the medicine, because they're so mad at what they perceive happened between the healthcare providers. And it was evident both in the documentation, in the medical record and in the nurse's deposition and trial testimony, that there was this tense interaction between the ER physician and the ICU nurse when the ER physician said, "That's not my job." It's a mad factor that was just very difficult to overcome.


Katy: Yeah. I'm not exactly sure what was in that record, but I'm sure it was inflammatory, to say the least. Well, like you said, J, that's a perception issue that is difficult to overcome. You know, sometimes it's an appearance issue, even though this case, you know, at trial we've got expert support that there was no damage caused by any delay to re-intubate the patient, the endotracheal tube was confirmed to have been in the proper position. So when the emergency room physician showed up to care for the patient, his care was appropriate. It may have been that the emergency room physician, knowing his hospital policy about what is a code, what is not, who is to do what, what role the providers are to play in care, that may have been the reason why he initially responded with, "That is not my job," but again, that's a challenge to overcome.


J. Baugh: Yeah. That's a mad factor that becomes very difficult for the defense side of things. So, you have a physician here who's doing what he believes to be right, based on the hospital policy, his clinical judgment. And so we've talked a little bit about a mad factor. Let's talk about sort of the opposite side of that coin, which would be physician perception.


Katy: Which is very significant when we're talking about a medical malpractice case.


J. Baugh: That's right. It makes a big difference in the way that a jury perceives the testimony of the defendant physician, because physicians are widely respected. They're perceived as healers with good intentions. They're members of the community with the ability to help other people in a remarkable way. Statistics show that the general public regards physicians as the most trusted profession. And so, this is why jurors usually believe and support physicians in a healthcare liability case, because they want to believe that an individual who's dedicated his or her life to helping others has not actually caused intentional harm. People want to trust their physicians. They're expected to show care and compassion to the patients they treat. And so all of this can work to the defendant's benefit because of what we referred to as physician perception.


Katy: I think they should be really comforting to our physician defendants. They walk into a trial with the jury on their side. It's an assumption of trust and an assumption that the physician has fulfilled their profession, has done their duty. So, when you have a case like this, where you've got a physician who's really not living up to that expectation, I think the pendulum swings very far to the other side, and once that jury perception has changed, there may be no turning back.


In this case, the defense attorney was able to speak with some of the jurors at the conclusion of the trial, and the jurors told them they just could not put the ER physician's comment aside. Several of the jurors were against the physician from the beginning. I think their probably decision stopped and started as soon as they heard that comment. Some jurors understood the defense's theory of the case and why the care was supported, but they were still not supportive of the physician. Other jurors did not even consider the position of the endotracheal tube. I think this is just the perfect example of, you know, it takes a lifetime to build a reputation and a minute to lose it.


J. Baugh: That's right. We talked a little bit about physician perception and how that works to your benefit when the case begins, but this one statement of, "That is not my job," painted the ER physician in a very unflattering light, and the jurors believe that anyone who would make this statement lack the compassion and the ability to practice medicine. They perceived the ER physician in a manner that did not represent the true or expected qualities of a physician.


Katy: So, obviously during the trial, our defense attorneys were aware that this case was not going well. And J, you mentioned they had probably tried to settle it earlier.


J. Baugh: That's right. They tried to settle the case prior to trial, but were unable to do so.


Katy: Well, this case actually was settled during the trial.


J. Baugh: So, let's talk about some of the key takeaways and some helpful pieces of advice that might be valuable to those who are listening to the podcast, who might find themselves in a difficult situation like this. I would say first and foremost, it's a fact that a physician must build trust with patients and with his or her healthcare team.


Katy: And it's important to remember that juries are the patients in this situation, and they're gonna put themselves in the patient's shoes, or they're going to assume that that patient is their family member. And it's important for our defendant, doctor, sir, remember that we as a society turned to them for help during some of our scariest and our most significant events in life. So, trust is fundamental to our relationship with our doctors. We trust them to take care of us when we need help and we can't help ourselves. I think that trust is also assumed by a jury because of the altruistic nature of medicine. Doctors are here to help people, and a jury wants the doctor to do that. Another aspect, not only trust with a patient, trust with your coworkers. Trust, you know, builds a team that, especially in a hospital setting, but even in a private practice setting, team is very important. It's going to be essential to a doctor's ability to care for a patient and ultimately perhaps to defend a lawsuit.


J. Baugh: And so I think that physicians should be committed to reminding society of the heroic efforts they make every day. But if they were confronted with an unpleasant experience of a healthcare liability suit, they need to remember that a person's perception of you may be more important than ever imagined. Someone once said, "How you act is who you want to be, but how you react is who you are." I think jurors pick up on that. They know that when you act, you have time to think, but when you react, you don't. And so, the real you comes out. Unfortunately, that's what happened in this situation when the ER physician said, "That is not my job.


Katy: I agree.


J. Baugh: So Katy, thank you for being here today.


Katy: Thanks, J.


J. Baugh: And I think we've all learned some key points from this closed claim that will help us in the future.


Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host, J. Baugh. Listen to more episodes. Subscribe to the podcast, and find show notes at SVMIC.com/podcast. 


The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and change over time. All names in the case have been changed to protect privacy.