Inevitable Malpractice


I’ll preface this post by saying that, as I usually do when discussing specific patient presentations, I made multiple factual changes in the factual information regarding the patient.

An 87 year old lady who is in excellent health comes into the department because she couldn’t move her leg. When she woke up and was fine. Her family helped her get dressed. She read the newspaper at breakfast. Then she went to the bathroom, was in there about 15 minutes, and began yelling for help because her leg hurt and she couldn’t get off the toilet. The family thought that she was sitting too long on the toilet, irritating her sciatic nerve, and thought she just needed to let her leg relax for a little while. A couple of hours later, her leg was hurting her more and she still couldn’t move it, so they called the ambulance.

This was a wonderful little lady who looked like she was 60. She was well-dressed. She carried on a normal conversation and was completely coherent. She joked back and forth with us. Her hair was done up perfectly and she had a fresh manicure. She took a blood pressure pill each day and that was about it. Unfortunately, when you looked at her leg, it was mottled and cold from the mid-thigh to her toes. It was obvious that she had an acute arterial occlusion of her leg. See an example on the right side of the picture above where there is no dye advancing in the femoral artery past the mid-thigh.

I called our vascular surgeon who came immediately and evaluated the patient. He recommended that she be transferred to the tertiary care center in our area where they had “more experience” dealing with these issues and could perhaps do intra-arterial thrombolytics. I called the vascular surgeon at the tertiary care center and he gave a lot of push back. Why were we transferring the patient when we had a vascular surgeon on staff? He demanded to talk to the patient and the family on the phone. While he was talking to the family, the patient had an episode of pulseless ventricular tachycardia.


The patient was a DNR, so we abided by her wishes and did not resuscitate her. About 30 seconds later, she had a pause in her rhythm and spontaneously converted back to normal sinus rhythm. She woke up asking “what happened?”

Upon hearing that the patient had an episode of ventricular tachycardia, the vascular surgeon at the tertiary care center told the family that he would not accept an unstable patient and hung up the phone. The ambulance company refused the transfer.

Our vascular surgeon was faced with a Morton’s Fork. If the patient didn’t have surgery, she would lose her leg and would likely die from the ensuing complications. However, the patient was also a high risk for having surgery. She just demonstrated an unstable cardiac rhythm and her cardiac enzymes were abnormal. Surgery would likely kill her.

The patient and family both wanted the surgery done. “Life wouldn’t be worth living without her leg,” they said. The anesthesiologist at the hospital was having a cow. “Let me get this straight. You want me to justify providing general anesthesia to a patient with an active heart attack so she can have a major surgery?” Time was running short. The artery must be opened within 6 hours of the event. We were at about 5 hours and 15 minutes from the estimated onset of symptoms.

So the patient was taken to surgery to try to re-establish blood flow to her leg. She survived surgery and her leg was warm again.

But for the sake of argument, let’s say that the patient either died or she lost her leg. Let’s also say that the family is very upset about how the patient’s care ended up. Let’s look at the possible outcomes.

If the patient didn’t go to surgery, she loses her leg. The hospital fails to stabilize an emergency medical condition. It gets fined for an EMTALA violation. A shotgun lawsuit against me, the vascular surgeon, the anesthesiologist, and anyone else whose name appears on the chart alleges that we failed to provide limb-saving treatment to the patient. Maybe the patient dies from complications from the amputation. “None of this would have happened if the negligent doctors appropriately treated the patient,” the plaintiff attorney argues.

If the patient goes to surgery, she stands a high likelihood of dying. A shotgun lawsuit alleges that there was a lack of informed consent, that we didn’t give intra-arterial thrombolytics (or get her somewhere that could give them), that we exaggerated the likelihood of a bad outcome if we used conservative treatment, and a litany of other negligent acts. “These negligent doctors knew that there was a high likelihood that the patient would die in surgery, but they chose to risk her life anyway,” argues the plaintiff attorney. “That’s not just negligence, that’s gross negligence. This family deserves punitive damages to keep doctors from making reckless decisions like this in the future.”

If the patient actually went to the tertiary care center and the intra-arterial thrombolytics didn’t work, then everyone is liable because in a time-sensitive situation like this, we chose to waste time attempting a less effective therapy rather than going to surgery and manually removing the clot. “These negligent physicians just let the clock run out on this poor woman’s chances at having a normal leg.”

These scenarios just illustrate the difference between prospective and retrospective medicine. Doctors have to make decisions in five minutes and lawyers have 5 years to tell you why those decisions were wrong.

When patients wonder why medical costs are so high, why fewer and fewer specialists want to take call for emergency departments, and why doctors practice defensive medicine, think about cases like this and decisions similar to this that occur throughout hospitals all over the country every single day.

What would you do if you were the surgeon?


  1. Well…not being a physician I can’t say what *I* would have done.

    But I can bounce the question back: What do you think needs to change, with the current system, to avoid the situation you describe (where any treatment option runs a high risk of significantly nondesirable outcome and a resultant lawsuit?) Is it *solely* avoiding a lawsuit that you’re concerned about here?

    • There needs to be both a change in the system and a change in the attitudes of the public.

      In order to get physicians and patients to collaborate, patients must have some responsibility for payment of their medical care. A system where every patient wants the best medical care that someone else can pay for is inherently unsustainable. Even if patients are financially responsible for only a percentage of their medical care, patients must have some skin in the game.
      Once that occurs, physicians can help patients choose the most cost-effective approach to treatment, rather than being seen as the entity that bars access to treatment. For example, you want to have a $3000 CT scan of your head for a minor head injury? Fine. You go to the CT suite and plunk down $3000. When the test is normal, you have no one to blame but yourself. However, if you go to a doctor before getting the CT scan, the doctor can advise you that there is less than a 1 in 2000 chance of there being any abnormality on the CT scan. Then, by listening to the doctor, you make an informed decision to forgo the test and save yourself $3000. A win-win situation.

      There also must be a wholesale change in the “death is a preventable event” mentality. Everyone will die. Because we will die does not mean that someone is liable for our death. However, when people die in the midst of medical treatment, the first thing that pops into most people’s minds (not everyone’s minds, though) is whether or not the medical provider screwed up. This mentality paradoxically reduces the availability of care and goes back to the “perfect care or available care” conundrum that I have previously mentioned.

      I think that most if not all physicians are primarily concerned about a patient’s welfare. However, in a case like the one presented above, when the likelihood of a bad outcome is high, mindsets really do shift to doing right by the patient … but doing everything possible to avoid the possibility of a lawsuit. That may involve extra testing, multiple consults, and transfer of high-risk patients to tertiary care hospitals so that they can deal with the liability provide more comprehensive care to the patients.

      • He’s absolutely right on with the payment part. And I’d bet that CT scan wouldn’t be $3000 under his scenario. Unfortunately, there is almost zero chance of the government intervention into healthcare retreating and this ever becoming reality. It’s not even clear that the majority of physicians want it.

        As always, the “perfect care or available care” claim is nonsense, as we all know the availability follows the wealth of the community. It’s the driving factor by a long shot.

        “There also must be a wholesale change in the “death is a preventable event” mentality.”

        This is also true, and I would encourage him to take it up with the marketing departments for most providers. Because that isn’t the message being sent.

    • It’s this kind of thing that makes me think that health care courts (or at least some sort of screening panel) would be a better way. Jury trials are about drama and the illusion that there is a good choice here – being rational wouldn’t even be part of the conversation. It would be much harder to convince a panel of experts that any option was without significant risk.

      • Someone who thinks a jury trial is about an illusion and drama hasn’t tried many. Or really thinks the voting public is 100% fools. Except for the speaker of course.

        If it were about that, physicians wouldn’t win the majority of the time, because the patient almost always has a pretty sad story.

    • Hmmm. Ketamine, huh? An IV induction agent which causes myocardial depression and sympathetic stimulation…in a patient with an active MI and symptomatic VT. That is a recipe for (further) disaster. The best option (from a series of bad options) is to stabilize her from a cardiac standpoint, and give up on the leg. As a distant 2nd option, I would categorize her as an ASA 4E (one could make a case for 5E, though) and have a frank discussion of the risks of anesthesia (and then document this in detail). I would offer to proceed to surgery with femoral and sciatic nerve blocks, but cancel the case if the blocks failed or if her clinical condition deteriorates. IMHO, this is the least lethal option which provides a chance to salvage the limb.

  2. I think you have to hit the family and patient right in the face with the pure, unvarnished truth.

    “Ma’am, ‘Life wouldn’t be worth living without her leg,’ is a childish, irresponsible response. It demonstrates to me that you do not yet fully understand the risks of doing the surgery, so let me explain again…….” And be sure to include your own personal risks.

    Hell, this is truly a Hobson’s Choice.

  3. Medical costs are high because we have a third party payment system. Note that nowhere are the costs of any of this ever discussed with the patient or the family.

  4. Take her to the cath lab and try to do percutaneous angioplasty on the leg (our vascular guys do this). If not able to open up the acute occlusion, or if she codes on the table at least an attempt was made to treat the acute problem.

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  6. Get them to sign a dozen forms saying they acknowledge the risks are going ahead despite all of the things that would justify not performing surgery?

    BTW what was the cause of the occlusion and how was it fixed in surgery?

  7. I think that some of the solutions here are easier said then done. For example, taking the patient to the cath lab wasn’t possible in this hospital so the patient needed a transfer to a hospital with a cath lab (and that hospital wouldn’t accept her).

    “Get them to sign a dozen forms saying the acknowledge the risks” doesn’t always work either. For example, I had a patient several months ago where the family was convinced she was having a stroke and they demanded I give her tPA. There were several nurses in the family and they were advocating tPA incessantly. They were also willing to “sign a dozen forms” etc to “allow” me to do it. However, I was convinced the patient was having a hemiplegic migraine. And I wasn’t about to give the patient something that could kill her no matter how many forms the patient’s family signed. Remember, “first do no harm”. As it turns out, I refused to give tPA and they were pissed. And her hemiplegic migraine got better and she walked out of the hospital 12 hours later. My point isn’t that they should have done nothing in the vascular surgery case. But that we shouldn’t bully physicians into doing something they think is harmful and think the doctor’s conscience will be absolved by the family signing forms. Sometimes it’s about more that liability.

  8. Knowing what you docs have to go through to CYA…I would ask the family if I could record myself explaining the scenarios mentioned,and verbatim record it in the chart. I would then ask for permission to record the family responses. IMO, no lawyer in his right mind could dare accuse of malpractice when everything is properly explained and the family is the one making the choice.

    Is this even plausible? Eh. Probably not. But I speak from experience. I wanted the birth of my children recorded. 2 allowed it, and two did not. I offered to sign waivers on the spot, or voice record it, but it was fruitless.

    I now tell my mother that she must videotape what she wants done when the time comes, so there will be no discussion, and have my siblings or I verify it, as well. My Mutti would prefer I take her to the “puppy farm”, drop her off and let that be the end, but the law does not allow for something so simple.

    You doctors get the shaft more often than you should because people have a hard time dealing with a loved one’s injuries or potential death and the overwhelming need to have someone to blame when it cannot be fixed.

    • “You doctors get the shaft more often than you should”

      The vast majority of medical errors don’t even get documented, much less see a claim file.

      As to videotaping things, I think you’re right on. Police resisted those cameras for years, but they’ve been an unqualified success. They’ve been effective in rooting out police brutality, and they make it clear what’s happening, especially with things like DWI stops.

    • Mattuendo,
      This is a blatant attempt at a straw man argument – and a weak one at that.

      You know that you can’t argue one course of action is the one to be taken to avoid liability. Classic Morton’s Fork.

      You know that you can’t dispute the retrospective arguments that a plaintiff’s attorney would use if there was a bad outcome in the case.

      You don’t even try to address those issues.
      Instead, you concoct some other issue totally unrelated to the topics presented and treat that issue as if it is central to the outcome of the case.

      But I’ll oblige your question just to show you how little of a difference your question makes. No, no one ever discussed the cost of any of the options.

      Do you know *why* no one mentioned the costs of the options? Because the patient wasn’t paying for her treatment. The Medicare National Bank (as Happy Hospitalist calls it – oops, now I’ve invoked him) pays for all the patient’s care. Whatever the Medicare National Bank doesn’t pay, the hospital eats because absent very specific circumstances (which the patient did not meet), Medicare beneficiaries cannot be billed for medical services provided to them.

      So please do tell us why a discussion of the costs of care would make a smidgen of an iota’s difference in the management of this patient.

      • Wow, you really read a lot into that. I was just curious since you claimed this was why medical costs were so high. As opposed to say, a payment system where neither the patient nor provider has an incentive to keep costs down.

        I never said it had anything to do with how you managed the patient. It is you who have placed all the other importance to a one line question. Your mind reading skills aren’t serving you well. And your understanding of the phrase “strawman” and “ad hominem” needs work it appears.

        Why would you ask me to address the issue of how the care should be managed based on a 200 word blog post? It’d be like asking your opinion on the legal system.

      • “You know that you can’t dispute the retrospective arguments that a plaintiff’s attorney would use if there was a bad outcome in the case”

        Incidentally, I have no idea what they’d say. That would depend on what a physician said, really. They’re the experts who would testify.

        I hope you don’t try and get a job at the circus trying to read minds or peer into the future.

        Also, using the word “retrospective” doesn’t really tell us much, you know. I realize you think you’re making some sort of point with it, but all reviews of all past actions are retrospective by nature. I hope you knew that.

  9. Out of interest, did you give any consideration to systemic TPA or TNK? Was her VT arrest thought due to her ischemic leg, acidosis and hyperK or thought to be a secondary to a separate cardiac event?
    Dr. J

    • The V tach was thought to be due to a heart attack since her enzymes were elevated. She wasn’t acidotic and her potassium was 5.0. We treated her for hyperkalemia anyway, expecting the potassium to rise if the surgery was successful.
      Did consider tPA, but CV surgeon did not believe that it would dissolve the clot and giving it would have then ruled out rescue surgery.

  10. I would love to see a post on emergency room doctors, how much you think they make, how much you think their malpractice insurance, and how the two interplay in your mind.

    I agree with the earlier commentator that you have set up a bit of a straw man here.

    I am against health care courts (response to another comment to the post). But certainly in Maryland, plaintiffs’ lawyers would prefer a bench trial in most Maryland counties. I think the assumption that doctors would do better in front of judges is largely wrong although it admittedly would result in less variation in the verdicts.

  11. Very difficult situation to handle. The patient life is at risk and great that patient has agreed for the surgery done. A Lawyer will always be in force if something goes wrong for the Lady

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