‘Gross Negligence’: A Slippery Slope for Dubious Expert Testimony


In an attempt to mitigate the high costs of medical malpractice insurance, decrease the number of multimillion dollar jury verdicts, and encourage physicians to provide medical care, some states have enacted laws to limit the liability of medical providers in medical malpractice cases. Capping noneconomic damages in medical malpractice cases is but one of the better-known methods that many states have utilized, but there are many others.

Expert opinions eviscerate Georgia law enacted to protect emergency medical care


In an attempt to mitigate the high costs of medical malpractice insurance, decrease the number of multimillion dollar jury verdicts, and encourage physicians to provide medical care, some states have enacted laws to limit the liability of medical providers in medical malpractice cases. Capping noneconomic damages in medical malpractice cases is but one of the better-known methods that many states have utilized, but there are many others.

Another approach that some states have used to implement tort reform is to increase the standard of proof required to prove negligence in cases where physicians are required by law to provide care. In general, to win a medical malpractice case, a plaintiff must prove that a physician had a duty to treat the patient, that the physician breached the duty, and that the physician’s breach of duty caused the patient to suffer damages. In most states, the standard for proving a “breach of duty” in a medical malpractice case is a simple negligence standard, meaning that a plaintiff must prove that a doctor violated the “standard of care” by failing to act as any other reasonable physician would act under similar circumstances.

In 2005, the Georgia legislature enacted a statute(1) requiring that any patients filing a medical malpractice claim based on EMTALA-related care must prove by “clear and convincing evidence” that the medical provider was grossly negligent. While the definitions of “gross negligence” vary from state to state, Georgia courts define “gross negligence” as being “equivalent to (the) failure to exercise even a slight degree of care” and “lack of the diligence that even careless men are accustomed to exercise.”(2)


Using the definition provided by Georgia courts, in order to win a medical malpractice case in Georgia, a plaintiff must prove by “clear and convincing evidence” that a physician failed to provide even a “slight degree” of medical care or that the physician’s medical care was less than “careless.” In theory, these are high hurdles to overcome, and many trial judges will dismiss cases, as a matter of law, that fail to meet this standard of proof. However, after a recent Georgia Supreme Court case, the initial determination as to whether a physician’s medical care was grossly negligent is now being left to the assertions of an expert witness. If an expert’s assertions of gross negligence are made in a careless manner, those allegations may result in severe repercussions for defendant physicians.

Application to Legal Cases

Expert opinions were central to a recent Georgia case(3) in which a 15 year old patient who was one week status post arthroscopic knee surgery went to the emergency department with complaints of left chest pain. The pain was worse when he laid flat. He had no fever or dyspnea and denied other complaints. In the emergency department, the patient had normal vital signs and “perfect” pulse oximetry. The physician performed a physical exam and ordered an EKG and a chest x-ray, both of which were interpreted as being normal. The patient’s pain resolved after receiving Toradol and he was sent home with a diagnosis of pleurisy and a prescription for Naprosyn. Two weeks later, the patient again developed chest pain and dyspnea. He was transported by ambulance back to the emergency department where he died from bilateral pulmonary emboli.

The patient’s parents filed a medical malpractice lawsuit against the treating emergency physician and the emergency physician’s group. The trial court dismissed the case for failing to meet the “gross negligence” standard of proof. An appellate court then affirmed the trial court’s decision. The Georgia Supreme Court reviewed the case, including testimony from plaintiff experts Drs. Peter Rosen and Dr. Steven Gabaeff. According to the court opinions, Drs. Rosen and Gabaeff testified that the EKG showed “Q3T3” abnormalities and the chest x-ray demonstrated cardiomegaly – which were allegedly both suggestive of a pulmonary embolism. Dr. Rosen’s opinion was based on his experience diagnosing “hundreds if not thousands” of pulmonary emboli in his career. Rosen and Gabaeff opined that the patient’s symptoms “presented a classic case of pulmonary embolism” and that the diagnostic measures that the emergency physician took in response to those symptoms “did nothing to prove or disprove the presence” of a pulmonary embolism. While the treating physician believed that relief of pain from a pulmonary embolism would not occur with administration of Toradol, the experts called that reasoning “ridiculous.” Both experts stated that the standard of care required the treating physician to obtain a CT scan in order to rule out a pulmonary embolism in the patient, and that failure to do so was “grossly improper, egregious, and contrary to well-known and fundamental medical principles.” Given these expert opinions and other testimony in the case, the Georgia Supreme Court held that the treating physician’s treatment may have been grossly negligent and that a jury would have to decide the issue.



Experts must be cognizant of the strong hindsight bias created by knowing the outcome of a patient’s treatment and must strive to engage in prospective rather than retrospective review of a physician’s care. These caveats are even more important when delineating between ordinary negligence and gross negligence. It is medically and ethically inappropriate for an expert to make an allegation of medical negligence that is in any way based on the patient’s outcome.

It is abundantly clear that in this case the opinions of both experts were significantly influenced by hindsight bias. They repeatedly criticized the treating physician for failing to properly evaluate the patient for a “pulmonary embolism” even though that diagnosis was not known until two weeks after the patient had been discharged from the emergency department. In addition, they called the physician’s clinical exclusion of pulmonary embolism in the patient “egregious” even though the patient’s vital signs and oxygenation were normal, the alleged abnormalities found on x-ray and EKG were not predictive of pulmonary embolism, and the patient had a low pre-test probability for pulmonary embolism.

Pursuant to Georgia law, the standard to which the emergency physician was held in this case was a failure to provide even a “slight” degree of medical care to the patient. Had Drs. Rosen and Gabaeff focused their opinions upon the prospective evaluation of a 15 year old male with pleuritic chest pain, they would have realized the significant leap in logic it would take to allege that a history and physical examination, evaluation of oxygenation, evaluation of chest x-rays and EKG, administration of medications to treat symptoms, and subsequent re-evaluation of the patient all constituted less than “slight” care of this patient or were “less than careless.”

The Fall Out

A finding of grossly negligent medical care has implications far beyond being found liable in a medical malpractice case. A determination that a physician engaged in grossly negligent medical care may affect that physician’s ability to continue practicing medicine. Physician employment contracts often contain language allowing the physician to be immediately terminated for any actions that constitute a threat to the safety of patients. Failing to exercise “even a slight degree of care” in providing treatment to patients would certainly fit that definition. However, losing one’s job may be the least of the physician’s worries,. A determination that a physician’s care was grossly negligent may also cause a physician’s malpractice coverage to be denied, may subject a physician to punitive damages, and may result in adverse actions against the physician’s license.

Denial of Malpractice Coverage

Just as a homeowner’s insurance policy may exclude certain types of damages from coverage, medical malpractice insurance companies also exclude certain actions from coverage. For example, medical malpractice insurance carriers generally deny coverage for criminal acts. Policy language may also exclude grossly negligent acts from coverage. One medical malpractice insurance company’s policy reserves the right to deny defense or payment of damages for “any criminal, intentional, fraudulent, malicious, or reckless act or omission.” Another medical malpractice policy reserves the right to cancel an insurance policy (and presumably deny coverage for) “discovery of willful or grossly negligent acts or omissions … which materially increase the risks insured under this policy.”

An allegation of grossly negligent care or a finding of grossly negligent care by a jury may be sufficient cause for an insurer to deny a physician’s medical malpractice coverage, leaving the physician personally liable for all defense costs and judgments associated with the medical malpractice lawsuit.

Punitive Damages

In most states, medical malpractice defendants can be liable for punitive damages. While many of the states that allow punitive damages require that a defendant engage in acts demonstrating “willful misconduct,” “malice,” “fraud,” or “outrageous conduct” before punitive damages can be imposed, some states allow punitive damages to be imposed with a finding of gross negligence. For example, under Florida statutes, a defendant may be held liable for punitive damages “if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.”(4)  Mississippi allows punitive damage awards for clear and convincing proof of “actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, [or]actual fraud.” Even in Georgia, punitive damages may be awarded if “it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”(5) 

Punitive damage awards are paid out of the defendant’s pocket.

Actions Against a Physician’s Medical License

Every state has a Medical Practice Act which delineates how medical providers are to be licensed, monitored, and disciplined. If a state licensing board becomes aware that a physician’s medical care has been adjudged grossly negligent, the Board is likely to take some action against the physician’s medical license. For example, California statutes require the Division of Medical Quality to take action against any licensee who is charged with “unprofessional conduct” – the definition of which includes “gross negligence.”(6) Illinois statutes allow revocation, suspension and “any other disciplinary action” against a physician’s license in addition to a fine of $10,000 for each violation, when a physician engages in, among other things, “gross negligence in practice under this Act.”(7)

Like malpractice payments, adverse actions taken against a physician’s license are reported to the National Practitioner Databank and may trigger adverse actions by medical boards in any other states where the physician holds a medical license.


As medicolegal paradigms change, we must educate ourselves about how those new paradigms affect our practice and our liability. While legislative changes in the standard of proof for medical malpractice cases may help states retain emergency physicians and specialists who are willing to provide emergency medical care, allowing experts to provide illogical and inappropriate testimony regarding those standards defeats the intended purpose of the legislation and puts emergency physicians at considerable risk. Just as emergency physicians should have an interest in protecting our patients from inappropriate medical care, so too should we have an interest in protecting our colleagues from inappropriate medical testimony. Failing to address these issues benefits neither us nor our profession.

Dr. Sullivan practices emergency medicine in Illinois, is a Clinical Assistant Professor at both the University of Illinois at Midwestern University. He is a past-president of the Illinois College of Emergency Physicians, a  past chair of the ACEP Medical Legal Committee, and has a private legal practice focusing on healthcare-related issues.


1. OCGA § 51-1-29.5(c)

2. [Gliemmo v. Cousineau, No. S09A1807 (March 15, 2010)

3. http://caselaw.findlaw.com/ga-court-of-appeals/1616486.html, http://caselaw.findlaw.com/ga-supreme-court/1649592.html

4. Fla. Stat. 768.72(2)

5. O.C.G.A. § 51-12-5.1(b).

6. Cal. Code Section 2234 (b)

7. 225 ILCS 60/22(A)(4).


Case Files

Examples of Gross Negligence in Medical Malpractice

1 Surgeon was found liable for gross negligence after treating postoperative ileus with nasogastric suction and failing to monitor or replace electrolytes for three days. Patient later died from suspected electrolyte imbalance. Expert testimony played large part in court’s determination, as two experts both testified that omissions such as failing to administer electrolytes to a patient who could not tolerate oral fluids and failure to review x-rays taken the night before the patient’s death were “an extreme departure from the standard practice of medicine.” 

Gore v. Board of Medical Quality Assurance, 110 Cal. App. 3d 184 (Cal. 1980)

2 Doctors liable for grossly negligent care after administering 400 hours of supplemental oxygen to premature infant who later developed blindness from retrolental fibroplasia. Prior to event, AAP report was published warning of development of RLF in premature infants receiving supplemental oxygen and recommended regular ABG monitoring. At subsequent hospital pediatrics meeting, staff doctors warned that hospital would have “blind babies” if it did not obtain equipment to monitor neonatal blood gases. When plaintiff born as premature infant, hospital neither had proper equipment nor offered to transfer patient to hospital that did have proper equipment.

Birchfield v. Texarkana Memorial Hosp., 747 SW 2d 361 (Texas 1987)

3 Emergency department nurses were found liable for gross negligence for giving intravenous verapamil to patient suffering from ventricular tachycardia who refused cardioversion and whose rhythm had not responded to either lidocaine or bretylium. Cardiologist recommended giving Verapamil, but ACLS protocols noted that Verapamil is contraindicated in ventricular tachycardia, and nurses admitted knowing that there was an extreme risk in giving Verapamil. Patient suffered cardiac arrest shortly after receiving Verapamil and now has permanent brain damage. Emergency physician and cardiologist found not liable. 

Columbia Medical Center of Las Colinas v. Bush, 122 S.W.3d 835 (Texas 2003)


  1. But the patient wasn’t a fifteen year old with pleuritic chest pain. He as a fifteen year old who had just had leg surgery, who had pleuritic chest pain. I agree with Rosen that such a history requires that the treating ED physician consider PE and rule it out.

    The fact that Rosen was willing to appear for the plaintiff in this case ought to tell us all something as well.

  2. Patrick Malik on

    Curious if DDIMER would have been low or high, and if low, would that have been enough to not warrant CT scan, otherwise we will be scanning all folks with pleuritic chest pain, that’s just not good medicine. Maybe Greg Henry can comment on this case?

  3. Robert McNamara, MD on

    Dr. Sullivan is to be commended for this piece along with EP Monthly for publishing it. The greater transparency around this issue the better it is for the specialty in my view.

  4. Birdstrike MD on

    I wasn’t aware that Dr. Peter Rosen, editor of “Emergency Medicine: Concepts and Clinical Practice” was working as a paid plaintiff witness and testifying AGAINST fellow Emergency Physicians.


    Absolutely shameful. And I am the only one to comment on this? Where is the outrage? Or as physicians have we worked too hard to perfect our fashionable brand of apathy, to dare rock the boat?

    • Heather Dieperin on

      I agree. We cannot hang our fellow physicians. This profession is hard. We must have empathy for our patients and for each other. I seriously doubt Rosen has diagnosed “thousands” of PE’s.

  5. I think dubious is like horrible night mares… our mind create some illusions… sometime dubious is beneficial… especially during creative imaginations…

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  6. I agree with Dr. Sullivan’s analysis of the expert’s testimony. “Q3T3” is a common finding on ECG and is a normal variant. If the ECG shows a new “S1Q3T3” this may be indicative of right heart strain, but it is unlikely an old ECG was available in this case. Comments such as “ridiculous,” “grossly improper,” etc are subjective and I do not believe any expert is qualified to pass this sort of judgement. Did either expert ever work in Georgia? How much time has either spent in a similar type of practice (I am guessing this case occurred in the community)? How are they experts in care in an environment they do not work?

  7. Gerard H, MD on

    Based on the information given, and the opinion rendered what I gleaned about Peter Rosen and Steven Gabaeff is that they sold out an emergency physician with an opinion that absolutely did not violate the legal standard they had to meet.

    The crux of this article isn’t the “what you would have done or looked for” or even whether or not it violated our professional “standard of care”. It’s the issue of gross negligence. Peter Rosen and Gabaeff had the gall to state the physicians work up and interpretation of the data violated a GROSS NEGLIGENCE standard, not the simple negligence standard. Rosen is stating that the treating physician provided care that was “equivalent to (the) failure to exercise even a slight degree of care” and “lack of the diligence that even careless men are accustomed to exercise.” Whether or not you feel that this work up failed to meet the standard of care is irrelevant, I don’t think a reasonable physician would argue that this work up lacked the diligence of even careless men.

    This should terrify every emergency physician in a tort reformed state as you are just an as you are just an “expert witness” willing to hyperbolize their opinion away from losing a crushing defeat regardless of the legal standard in your state.

    This case should serve as a canary in the coal mine for the role of personal legal protection when the forefathers of our specialty are willing to come out to haunt us, not help us as a specialty. If we as a professional society can not get behind the idea of acceptable miss rate and truly appreciate what is an unfortunate bad outcome compared to true negligence then we as a profession are doomed if not dead.

    This is an embarrassing mark on our specialty.


  9. @JR but this was a 15 year old. This age has a very low risk of thrombotic disorder. Granted, he had recent long-bone surgery, which is a risk, but the vital signs were normal. Are both of us having PE’s? Yes, but they are very small and have no hemodynamic significance. Per Jerry Hoffman we are advised to at least consider ignoring small PE’s and leave them untreated. Chest pain is less associated with PE than is dyspnea.

    Was he PERC positive? Yes, because of his surgery. Should the doctor have ordered a d dimer in this case? I would have. Was it malpractice to not get a d dimer done? I would say yes. Was it grossly negligent to not get a d dimer? I think that has got to be a reach, at least in what I know so far about the case. Where is the tachypnea? Where is the tachycardic response to cardiopulmonary stress? Where is the loss of subjective functional capacity from cardiopulmonary stress? I wish Drs. Rosen and Gabaef had not gone there, unless there is something I’m missing in this database. Their statements will likely come back to bite the rest of us in the long run. Can we please all try to make the malpractice environment in this country more like all the other developed nations in the world, including quite a list of nations where health outcomes are superior to the United States.

  10. Bill Caldwell on

    Am not sure what I would have done, but certainly does not seem to be malpractice. You cannot and should not CT everyone.

  11. The above referenced case is not an example of tort law gone wrong, in fact if it wasn’t gross negligence it bordered on the criminal. Acute onset of pleuritic chest pain one week after surgery should immediately suggest pulmonary embolus. And none of the test ordered are reliable tools to rule out that diagnosis. The defense is not based on the number of tests, but on what tests are appropriate. Not ruling out pulmonary embolus with such a presentation one week post op just bad medical practice. Of course there might have been mitigating circumstances such as a radiology department that thinks the ER docs job is to keep the radiologists sleeping at night. Meanwhile a fifteen year old is dead

    • A.A. McNeill on

      So, John, your take is every child complaining of chest pain after every procedure should have a CTA to rule out PE? Ridiculous. Bad things happen to people. It’s not our fault. Normal vital signs are normal. 2 weeks out from the visit, develops a saddle embolus and your take is it was missed at the prior visit. If your foresight were as good as your hindsight you would be a great doctor. Unfortunately your stand that every kid with a chest pain complaint after any procedure needs a CTA will result in a lot of useless radiation exposure and massive cost.
      Maybe your should write a protocol for that and see how it works……….

  12. I’m sorry lining up to defend bad medical practice is not the way to advance tort reform. What was this doc thinking, if we can assume that he was thinking at all? Acute onset of pleuritic chest pain one week post op should immediately suggest pulmonary embolus. And this should have be ruled out or in with more appropriate tests

  13. I agree with Dr. Berger’s comment in that it is sad that Dr. Rosen does not even look at his own book (6th ed. page 1373) which mentions S1Q3T3 and not Q3T3. In addition, a true PE expert such as Dr. Kline in Tintinalli (7th ed. page 433) also mentions S1Q3T3 and no Q3T3. Neither major text mentions Q3T3. In my limited opinion, Dr. Kline is a true PE expert due to the amount of data and research he generates yearly on PE (I have never met him before and have no connection with Dr. Kline).

    It is tragic that the child died, but also tragic that a leader in EM such as Dr. Rosen has also committed social suicide. The reputation of Dr. Gabaeff online is not flattering either, but one cannot gain much information from online “reviews”. This is why I have quit Emergency Medicine despite being formally trained in EM and currently an ABEM diplomate.

  14. William Sullivan on

    Wanted to thank everyone for the thoughtful comments and provide some feedback to the questions and statements.

    Regarding whether a PE should have been in this physician’s diagnosis, consider several factors:
    Pediatric pulmonary emboli are exceedingly rare. Estimated incidence in a couple of studies is about 1 in 100,000 and of those, 50% were due to indwelling central venous catheters.
    In addition, 2/3 of pediatric PEs originate in the upper extremities, not the lower extremities.
    See also this Medscape article alleging that there were only 308 cases of PE/DVT reported in the medical literature between 1975 and 1993. http://emedicine.medscape.com/article/300901-overview#a0156
    We’d need to do a tremendous number of CT scans to catch a single PE in a pediatric patient. Statistics vary by source and type of scan, but radiation absolutely increases the incidence of cancer and that children are more vulnerable to the effects of radiation.
    Then consider how many children would have complications from the contrast. According to a study in Radiology, adverse reactions range from 3-12% of cases with severe reactions occurring in between 0.2% and 0.04% of cases. https://www.ncbi.nlm.nih.gov/pubmed/2343107
    A contrast CT is not a harmless test.

    The utility of a d-dimer has not been studied in children. With the small number of cases of DVT/PE reported in children, there simply isn’t enough data to create predictive rules in children and we can’t extrapolate the data from that used with results. The authors of this JEM article recommend that D-dimers NOT be used in evaluating a childhood PE. http://www.ers4kids.com/files/PE_pediatrics.pdf
    Similarly, the other prediction rules used in adults have also not been studied in children.

    There is a strong tendency toward hindsight bias in this case. The experts fell victims to it and many readers are also falling victim to it. When reading about a *lawsuit* involving a patient who had arthroscopic knee surgery and developed pleuritic chest pain, any emergency physician would jump to the conclusion “pulmonary embolism.”
    However, if you prospectively guessed “pulmonary embolism” in every post-surgical pediatric patient with pleuritic chest pain, you’d be wrong almost every time and you’d waste literally millions of dollars chasing the diagnosis. This patient played football and lifted weights. Would a muscle strain be so unlikely? Maybe he was using crutches. If so, couldn’t a reasonable physician have assumed that the crutches were irritating his chest wall?

    When considering whether an expert’s opinion is reasonable, I often tell my clients to take what the expert says and make a rule out of it. After all, if something is a “standard” of care, everyone should be doing it, correct?

    Here are a couple of the rules that we can create from Dr. Rosen’s and Dr. Gabaeff’s testimony:

    In a postoperative child with pleuritic chest pain, performing a physical exam, an EKG, a chest x-ray, and a pulse oximeter, then reassessing the patient after receiving pain medications was “equivalent to (the) failure to exercise even a slight degree of care” and “lack of the diligence that even careless men are accustomed to exercise.”
    Still agree with the experts?
    If so, you’re false billing every time that you charge for performing those services. Remember, you haven’t exercised even a “slight” degree of care by doing these things.

    How about this one:
    It is not just negligent, but it is GROSSLY negligent not to perform a CT angiogram on every single child that has had arthroscopic knee surgery and who has pleuritic chest pain.
    Some people may say that this statement does not reflect the experts’ testimony, but there were no other abnormalities (other than a “Q3T3” pattern on EKG which predicts nothing) on this patient’s exam. There was a normal physical exam, normal oxygen saturation, otherwise normal EKG, and normal chest x-ray.
    Does this sound like a “standard” we should endorse?

    By agreeing with these expert opinions, these are the legal precedents that we are setting for ourselves and to which we and our colleagues may be held in the future.

    I hope that we can keep the spirited discussion going. Thanks to everyone for participating.

  15. As physicians we have a responsibility to patients as well as to our fellow physicians. Our legal system asks that our experts truthfully define the standard of care regardless of whether it favors the defense or the plantiff. We need competent experts testifying for the plantiffs as well as the defense to ensure that the process is fair. The argument that an honorable physicians should not testify against a fellow physician is ethically similar to the Mafia’s code of silence. If the care is negligent, testifying to this is not dishonorable or a sell out.

    I’m stunned that any reasonable emergency physician would argue that you should not rule out PE in a 15 year old with onset of pleuritic chest pain, 1 week after surgery. I have the highest respect for Bob Macnamara and admit I’m confused that he would advocate a cavalier approach that would place a patient in harm’s way. A negative d-dimer would have been sufficient but this wasn’t done. If you want to refer to Kline, then remember that the patient was not PERC negative and needed to be screened. This is not coronary artery disease, any post op patient can form clot an embolize it.

    If you imagine yourself as the father of the patient rather than the doctor being sued, would you feel the same?
    Rosen provided a competent expert opinion.

  16. retrospective medicine is easy, no way is not doing a ct gross negligence, I wonder how much an hour these so called experts charged, and these ivory tower physicians that never work anymore in an busy ed with patient satisfaction pressures, ct utilization review and ambulance chase lawyers monitoring morgues for young patients with bad outcomes. Shameful, feel like dumping my rosen’s in the garbage

  17. Brian Hawkins on

    Even in adults to me a d dimer is not a screen for postop high risk symptoms; most postop patients are going to have a elevated d dimer anyway. The big question is if you think it is there or not and order a ct. If you were not the doc looking at this kid you can’t make the call now. So much factors into our clinical gestalt that no medical record will ever capture. I like dr Sullivan’s point that the risk is already so low that the diagnosis is highly unlikely. I guess we could go back to doing a head ct on every single kid that bumps his head as well.

  18. Reading this I am glad, as I often am ,that I work in a very different medico-legal environment (Australia). The comments have been fascinating. Reading it as a director of emergency medicine training I wonder what I can take from this to teach my trainees.

    Without, admittedly, seeing the doctor’s case notes, I can’t help but feel that a note spelling out that PE had been considered but was felt to be very unlikely and that the risk of harm from the test was greater than the risk of the diagnosis might have provided the defense required and demonstrated that care had indeed been taken.

    So often, reviewing M&M cases, the thought process of the clinician is entirely absent from the chart, despite the fact that it was subtle, deep and considered.

  19. I think Dr. Rosen proved once again that practicing medicine out of his own textbook is archaic and out of touch with reality with acts like his own and Dr. Gabaeff’s in this case.

    As a physician that takes part monthly in peer reviews, this case would have gotten “Opportunity for Improvement”…not “Deficiency of Care” as evidenced by Dr. Sullivan’s articulate explanation of the epidemiology and lack of evidence. Also, who is to assume that 2 weeks prior to his death he actually had a PE with the workup that was NEGATIVE. I have to believe that there was a f/u ordered in sooner than 2 weeks.

    Lastly, arthroscopic knee surgery is not a long bone surgery. It is an outpt procedure and these pts are up walking the day of surgery with ROM started quite early on. This is not a pt that is high risk for a DVT.

    Congrats to the two of you for costing the readers and citizens of our country hundreds of millions of dollars on these unnecessary tests so we(ED physicians providing the care) can keep watch for the proverbial knife in the back from our own.

    24/7/365 was a great documentary but makes me wonder if some of the scenes were more rhetoric than anything. As a young physician, it stinks that a black mark like this would skew my opinion of a legend.

  20. The irony is that at this point, Rosen’s testimony has become the most ‘grossly negligent’ act of the entire case. Why? how many ED physicians have read this story, and how many ‘extra’ and ‘unnecessary’ CT scans will now be performed on children out of ‘precaution’? Yes, the death of a 15 year old is horrible. But to give a testimony that will now lead to the death of 2 or 3 or more from cancer is despicable.

  21. Dr Sullivan throws up a smokescreen of statistics citing the rare occurrence of PE in the pediatric age group. However, we are not talking about the entire pediatric age group; we are discussing an older pediatric patient, one week post op, with acute onset of pleuritic chest pain. Or, should we also know the incidence of pluritic chest pain in people with Dr. Sullivan’s alternate scenarios: people on crutches, or those participating in athletic activities in general, to guide our decisions. A suggestive presentation, a suggestive EKG, and the duty to rule out a life threatening emergency, should have prompted a more thorough rule out. Whatever the percentage risk the patient is 100 percent dead.

  22. W. Anthony Gerard on

    There are some physicians who are likely to always disagree about the medical care provided in this case. Dr. Sullivan’s response in the May issue is excellent, but I am sure some physicians will still disagree with him about whether a PE should have been diagnosed.

    But this misses the main point: our discussions about this lawsuit should not be primarily about the medical care, but about incompetent and inaccurate expert witness testimony that was provided by several leaders of our specialty. ( Maybe they did this unwittingly. Neither Peter or Gabaeff are attorneys, and many excellent EP’s make crucial mistakes as expert witnesses.)

    Many physicians, even if they are excellent clinicians, cannot review medical cases without hindsight bias. The question in a lawsuit, or even in a peer review case, is not what could or should have been done (looking back at the case knowing the outcome), but what a reasonable physician would have done under similar circumstances ( at the start of the case).

    Retrospectively reviewing a medical case, whether for peer review or a legal case, is a common error. Avoiding hindsight bias is not intuitive, and some physicians cannot make the required shift in thought process. But the logical fallacy of “hindsight bias” needs to be avoided to provide competent expert witness testimony. Physicians who cannot review cases without this bias, even if they are authors and experts on the subject mattter, should not provide expert testimony.

    Whether or not negligence occurred in this case is not the main point, since many lawsuits involve expert testimony that is debatable. What makes Drs. Rosen and Gabaeff’s actions so aggregious is that they are leaders in our specialty and clearly did not provide competent expert witness testimony.

    This was a landmark case, since the Georgia law defining ” gross negligence” was written to defend physicians. And Dr. Rosen and Gabaeff’s participation in this case is reprehensible.

    Not only did they provide a retrospective review of this case,they do not understand ( or miscontrued) the legal definition of ” gross incompetence”. Their only excuse would be if they were misled by the plaintiff attorneys who hired them.

    Dr. Sullivan’s original article should be republished for a wider audience, and ” gross negligence standards” discussed in more depth since they may “backfire”.

    There are many MD/JD’s, and other medical legal experts in the leadership of EM. ( some on the editorial board of EPM) Some of you must know Peter and Steven. Has anyone spoken personally to them about this? If Drs. Rosen and Gabaeff are not open to exhortation, this case should be reviewed by ACEP and AAEM.

  23. This scenero and its repercussions gives me great pause. We are all doing a difficult job and at any given time make decisions (at many times literally simultaneously) based on the information and clinical picture present at that moment.

    For 2 respected individuals to imply “gross negligence” in this case speaks to the incredible arrogance that plagues our current tort-based “malpractice” system. How much money can be involved? Or is it just the opportunity to propagate the “one upsmanship” that has been a fundemental aspect of our medical milieu. As Greg Henry is fond of saying: “there for the grace of God go I”.

    To others who seem to also have a singular and unidimensional view of this case (“oh the clarity of hind site bias”) I would love to retrospectively review every single case of your career…

    I would like to echo the comment about ACEP/AEEM and their policy of review of egregious testimony as it applies to this case.

  24. it’s dirtbags like Peter Rosen who have pushed me into leaving the clinical practice of emergency medicine. and that is just sad.

  25. Clearly, you don’t understand how the PERC rule was designed. This is a decision tool. If the patient is PERC negative, the patient has a less than 2% chance of pulmonary embolus. If the patient is NOT perc negative, then further work up isn’t necessarily warranted. It is designed to rule out the diagnosis, not rule you in to further work up. Read Kline’s article for better clarification.

  26. What is “suggestive” of this pt’s presentation? Other than the fact that he had arthroscopic surgery? He had no dyspnea, tachycardia, tachynpea or hypoxemia? And it might be time for you to pick up your nearest EKG textbook b/c “Q3T3” is an EKG that is “suggestive” of nothing.

    Calling statistics a “smokescreen” b/c they do not fit with the narrative you are trying to create is closer to gross negligence than anything the physicians caring for this pt did in this case.

  27. This is an interesting discussion. Does it trouble anyone to argue that this is unjust because the physician may have been negligent (ie. unreasonable) but he wasn’t GROSSLY negligent? Isn’t the heightened standard of proof unfair? I mean, failure to provide the minimum care that a careless physician would have provided? Is that really a just standard for physicians? Is that what you expect when a family member goes to the ER?

    As far as the collateral damage to medical licenses and coverage – welcome to the law of unintended consequences. There will always be some verdicts you disagree with regardless of the standard. Having lowered the bar as far as the standard of care for ER physicians, should we complain when a doctor who is found to have failed to provided “slight” care loses his license or gets his premium jacked? This would not be as likely under a straightforward negligence standard. This is a direct consequence of asking for an unjust and unrealistic legal standard — when a jury says we fail to meet even that low standard, the consequences are potentially more drastic than they would have been if we merely made dumb mistake.

  28. The point of the article and its followup is not about the standard of care for physicians providing medical care. It is about the standard required of self designated expert witnesses in applying the legal definitions of negligence and gross negligence to the care provided in a case, without being blinded by hindsight or bending to the desire of attorneys for either side. To testify under oath that the care provided in this case constituted “gross negligence”, or the lack of even a “slight” degree of care (you can find the case—Johnson v Omondi http://caselaw.findlaw.com/ga-court-of-appeals/1616486.html) easily online and see all the facts), is a subversion of the standard of care of the expert witness to help the jury understand the truth, rather than to pander to any attorney. Not only is this a violation of an expert’s responsibility to the judicial system, but it is in violation of both ACEP’s and AAEM’s ethical policies as applied to expert witness testimony. http://www.acep.org/Clinical—Practice-Management/Expert-Witness-Guidelines-for-the-Specialty-of-Emergency-Medicine/

  29. ShaunSheep MD on

    Everyone on here is long winded. I’ll make it short. Is it malpractice? Yes, it’s bad practice leading to bad outcome. But that’s not the question! Is it gross negligence? No because apparently he thought of it, he mentions normal vital signs, he considered it. He did not neglect it.

    The fact is Rosen wanted to be a know it all. And he wanted to pat himself on the back.

  30. Gerard Parkinson on

    A 91 year old lady admitted to a casualty unit in the UK after fainting. Previously in excellent health. On admission to the unit she is suffering from hypotension and respiratory distress. The emergency physician conducts no hands on physical examination, concludes the patient is dying, endorse the records with a DNAR order without consulting the patient or family and the patient ends up dead. A private autopsy for the family shows the cause of death to be multiple small untreated oulmonary emboli. An independent expert reports that the lack of care is seriously sub standard and another expert says that thrombolysis would have her life.

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