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In a recent Medical Malpractice/Wrongful Death case we are told the jury primarily heard the family’s tale and acted with compassion rather than according to the rigors of the law. That is the take of Cortlandt Forum, at least.

I read the facts outlined on the Forum and come to an entirely different conclusion.

A complicated case is trumped by the sympathy factor

The patient was a 22-year-old man on total and permanent disability for his severe uncorrected congenital heart disease (CHD) in the form of tetralogy of Fallot. He visited Dr. A and complained that he had not been feeling well for the past several days. His illness came on gradually and was accompanied by cough, fever, and night sweats. The patient noted that because of the pulmonary congestion associated with his CHD, he was susceptible to respiratory infections. Dr. A examined him and diagnosed a probable upper respiratory infection (URI) with some spread to the lower airway. He prescribed symptomatic treatment, holding antibiotics in reserve for a possible later complication.

[This is a patient with a known cardiac defect – severe uncorrected congenital heart disease (CHD) in the form of tetralogy of Fallot – which produced heart murmurs, the usual cardiac murmurs associated with his heart condition. Because of a fear of bacterial endocarditis even my dentist provides me, a person with a very benign heart murmur, with a relatively heavy dose of antibiotics at the time of a teeth cleaning.]

The patient called the office several days later to report that he felt no better. [We are likely at the 6 day point in this medical problem.] The office nurse reviewed his chart, consulted with Dr. B, and advised the patient to come in if he did not improve in two days. Two days later, the patient appeared in the clinic, stating that he was not doing better, and demanded that something be done. [We are now at the likely 8 day point in this medical problem.]

Dr. B examined him but found only some nasal congestion, a red throat, and the usual cardiac murmurs associated with his heart condition. The physician advised him to continue the symptomatic treatment prescribed and started him on antibiotics for his red throat. When asked if he had seen his cardiologist recently, the patient replied that he had not. Dr. B recommended he do so as soon as possible and noted this advice in the chart.

Unfortunately, the man never made an appointment to see his cardiologist and wound up in the emergency department (ED) the next day. The ED physician examined him carefully and ordered tests, including a blood culture for persistent low-grade fever in a patient with CHD. [Tests that should have been ordered approximately 6 days earlier.] Two days later, the hospital contacted the patient with the news that the blood cultures were positive for Streptococcus viridans. After seeing his cardiologist on the advice of the ED physician, the patient was started on high-dose antibiotics, but he died of congestive heart failure two weeks later.

The jurors sat stone-faced and silent as they listened to the lawyers outline their cases. The plaintiff’s lawyer first explained that patients with CHD are very susceptible to SBE. Physicians faced with such a patient should take special care and order extra tests to ensure that the symptoms of URI are not something more sinister. [This is basic, universally accepted medical practice.] He blamed the patient’s death on the physicians’ failure to diagnose SBE and insufficient follow-up. The defense lawyer emphasized the difficulty of making such an elusive diagnosis and the patient’s short life expectancy (even if the SBE had been recognized earlier and effectively treated). [When all else fails, use the So What defense.] He pointed out to the jury that the treating cardiologist admitted that the diagnosis was made “almost by accident.” In the end, the testimony of the patient’s wife proved most persuasive. The jury returned with a $1.5-million verdict against Drs. A and B for wrongful death, loss of services, and mental anguish.

Jurors are charged with finding evidence of negligence before they proceed to assessing damages. The powerful emotional testimony of the young widow in this case was enough to tempt them to omit or minimize the liability question and simply award the needy family some money. [The liability question was actually easy to decide for the Plaintiff.] Although all the experts in this case agreed that the diagnosis of SBE is difficult and evasive, the jury primarily heard the family’s tale and acted with compassion rather than according to the rigors of the law. Such an approach has become increasingly common in some communities and has led to a shortage of medical services as providers beat a hasty retreat to more physician-friendly areas.

My only criticism of the verdict is that it was too low.

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