The document discusses resources and services provided by KaMMCO, a medical malpractice insurer, to help physicians and hospitals reduce liability exposure. It outlines loss prevention programs like coding audits, practice assessments, and educational seminars. The document also provides biographies of two speakers from KaMMCO who will discuss strategies used in medical malpractice litigation, including analyzing cases to determine why some are won or lost. The goal is for healthcare providers to learn from these examples to improve patient care and avoid similar claims.

1. Presents
That Will
Never
Happen
To Me...
Understanding Medical Professional Liability Litigation
Through Real Claims & Case Studies
A loss prevention program for
Physicians and Clinic Managers,
Hospital Administrators and Risk Managers,
and Other Health Care Professionals
Joint Sponsor
The University of Kansas School of Medicine-Wichita
Division of Postgraduate Education

2. KaMMCO
Resource Guide
 www.KaMMCO.com - KaMMCO’s new website provides members with access to details
about upcoming events, loss prevention guides, practice management information,
applications, and much more.
 KnowledgeSource PRO® - A web-based product to help physicians and staff identify
missed revenue opportunities and ensure coding compliance by providing critical regulatory
coding and reimbursement guidance. This is offered to members at no charge.
 Quality Data Check (QDC) - A comprehensive quality and risk management software
system for hospitals. This product is offered to members at no charge.
 Site Visits - Member Service Coordinators are available to discuss questions, concerns, or
suggestions as to how KaMMCO may better serve members.
 Chart Audits - Certified Professional Coders are available to perform coding and
documentation assessments. A baseline chart review will assist with preventing, detecting,
and correcting coding errors.
 Practice Management - KaMMCO offers many useful services for physician practices such
as operational assessments, risk reviews, comprehensive practice assessments, human
resource assessments, and assistance with new practice development.
 Loss Prevention Guides - KaMMCO provides Loss Prevention Guides for both physicians
and hospitals to help members improve patient care and reduce professional liability
exposure. These guides include sample forms, information about medical records, assistance
with office procedures, and much more.
 Hospital Preferred Insurance Program - KaMMCO, the Kansas Hospital Association
(KHA), and Kansas Health Service Corporation (KHSC) have developed a preferred
insurance program for Kansas hospitals. The new preferred insurance program will allow
KaMMCO, KHA, and KHSC to work together to provide liability insurance products and
risk management services to all KHA and KaMMCO member hospitals.
 C.A.R.E. Program - A support program for physicians involved in litigation. The program
offers a notebook with information about the legal process, educational letters sent during
key moments of the litigation experience, access to emotional support, and a venue for
physicians to discuss the emotional aspects of being involved in litigation.
 Fall Loss Prevention Programs - Education programs for physicians and hospitals.
Programs are designed to provide important and relevant information to the medical
community. Those eligible receive a premium credit and continuing medical education
(CME) for attendance.
 Education Requests - Upon request, KaMMCO staff is available to provide on-site
education to members regarding a variety of topics important to physicians, hospitals,
medical offices, and staff.

3. About Our Speakers
Cristy Anderson, JD, Claims Manager, Wichita Office, KaMMCO
Cristy received her undergraduate degree from Wichita State University and her law degree from
Washburn University School of Law in Topeka. Cristy practiced in the areas of medical
professional liability defense and workers’ compensation defense among other areas at Hite,
Fanning and Honeyman, L.L.P. until assuming her current position with KaMMCO.
Cristy is a member of the Kansas Association of Defense Counsel, the Defense Research Institute
(DRI), and participates on the Medical-Legal and Civil Practice Committees for the Wichita Bar
Association.
David O’Neal, JD, Vice President-Claims & Corporate Counsel, KaMMCO
Dave received his undergraduate degree from the University of Kansas and his law degree from
South Texas College of Law in Houston, Texas. Dave practiced in the areas of medical
professional liability defense and insurance defense in Houston prior to returning to Kansas in
2002. He continued to defend physicians and other medical professionals with the law firm of
Goodell, Stratton, Edmonds and Palmer, L.L.P. in Topeka until assuming his current position with
KaMMCO.
Dave is the Vice Chair of the Claims Section for the Physician Insurers Association of America
(PIAA), and works closely with the Kansas Medical Society (KMS) in monitoring the tort
litigation environment in Kansas. He is a member of the Defense Research Institute (DRI), the
Kansas Association of Defense Counsel, the Kansas Bar Association, and the Topeka Bar
Association.
Speaker and Planning Committee Disclosure
Neither speakers nor planning committee members have any financial relationships to disclose.
Commercial Support Disclosure
There are no proprietary entities producing health care goods or services (consumed by or used on
patients) supporting this activity.
Continuing Medical Education Credit
This activity has been planned and implemented in accordance with the Essential Areas and
policies of the Accreditation Council for Continuing Medical Education through the joint
sponsorship of the University of Kansas School of Medicine-Wichita and KaMMCO. The
University of Kansas School of Medicine-Wichita is accredited by the ACCME to provide
continuing medical education for physicians.
The University of Kansas School of Medicine-Wichita designates this educational activity for a
maximum of 1.25 AMA PRA Category 1 Credits. Physicians should only claim credit
commensurate with the extent of their participation in the activity.
Continuing Nursing Education Credit
KaMMCO is approved as a long-term provider of continuing nursing education by the Kansas
State Board of Nursing. This educational program is approved for 1.50 contact hours applicable
for RN, LPN, or LMHT relicensure. Kansas State Board of Nursing provider number is: LT0232-
1238.

4. Program Purpose and Objectives
This handout has been developed to assist physicians and other health care professionals
understand why some medical professional liability cases are won while others are lost when all
agree that the medicine looked good. This program will explore and analyze many of the complex
facets that go into the successful (and sometimes unsuccessful) defense of medical professional
liability claims. Strengths and weaknesses that impact the outcomes of claims in Kansas will be
identified and loss prevention and claims tips will be offered enabling health care professionals to
focus on patient care.
The recommendations in this handout are not intended to establish a standard of care, nor are they
a substitute for legal advice. The recommendations should be tailored to meet the needs of each
particular health care setting. Any implementation of these recommendations should be reviewed
by appropriate staff and, if necessary, legal counsel. The fact that a health care professional varies
from these guidelines does not establish that the health care professional failed to meet the
required standard of care. There may be legitimate reasons to choose another course of action.
However, consideration of the information in this handout may reduce the risk of facing a lawsuit
and the stress that accompanies even a successful defense in court.
Following participation in this presentation, the learner will be prepared to:
1. Describe loss prevention and claims strategies used in medical professional liability litigation
thereby attaining the ability to adopt new strategies for reducing claims.
2. Investigate potential allegations made in the delivery of health care that contribute to medical
professional liability claims, and apply that information to prevent future claims.
3. Identify elements in the delivery of health care that contribute to medical professional liability
claims, and modify them to improve the delivery of health care and avoid similar situations.
Contents of this handout are produced for the benefit of KaMMCO members and are protected by
2009 copyright. No one other than KaMMCO members may reproduce the contents of this
handout without written permission from KaMMCO. Send all communication to KaMMCO,
623 S.W. 10th Avenue, Topeka, Kansas 66612.

5. Table of Contents
Introduction .................................................................................................... 1
1. Effective Systems ................................................................................. 1
Internal Policies & Procedures ...............................................................................1
Case Study #1 ...........................................................................................................2
Analysis.....................................................................................................................2
Outcome....................................................................................................................2
Points to Remember................................................................................................3
Internal Communications........................................................................................3
Case Study #2 ...........................................................................................................3
Analysis.....................................................................................................................4
Outcome....................................................................................................................4
Points to Remember................................................................................................4
2. Patient Communication ...................................................................... 4
Coordinated Patient Care ........................................................................................5
Case Study #3 ...........................................................................................................5
Analysis.....................................................................................................................5
Outcome....................................................................................................................5
Points to Remember................................................................................................6
3. Patient Care Issues .............................................................................. 6
Informed Consent ....................................................................................................6
Case Study #4 ...........................................................................................................6
Analysis.....................................................................................................................7
Outcome....................................................................................................................7
Points to Remember................................................................................................8
Failure to Diagnose/Treat .......................................................................................8
Case Study #5 ...........................................................................................................8
Analysis.....................................................................................................................9
Outcome....................................................................................................................9
Points to Remember................................................................................................9
4. Litigation Issues ................................................................................... 9
Finger Pointing .......................................................................................................10
Case Study #6 ..........................................................................................................10
Analysis....................................................................................................................10
Outcome...................................................................................................................11
Points to Remember...............................................................................................11

6. Willingness to Defend Good Care ..........................................................................11
Case Study #7 ..........................................................................................................11
Analysis....................................................................................................................12
Outcome...................................................................................................................13
Points to Remember...............................................................................................14
Conclusion ..........................................................................................................................14

7. That Will Never Happen to Me...
Understanding Medical Professional Liability Litigation
Through Real Claims & Case Studies
Introduction
Every medical professional liability claim or lawsuit is based on tort law. One author states that,
“‘Tort’ is an elusive concept. The word is not used in common speech. Although it describes one of
the major pigeon-holes of the law, the concept has defied a number of attempts to formulate a useful
definition. The dilemma is that any definition that is sufficiently comprehensive to encompass all
torts is so general as to be almost meaningless.” 1 A medical negligence tort is a civil matter as
opposed to a criminal matter. The medical professional is the defendant and the patient is the
plaintiff. A common element of all torts, medical negligence included, is that “someone has
sustained a loss or harm as the result of some act or failure to act by another,” 2 for which the court
will provide a remedy in the form of damages awarded (money). “Proof of malpractice requires two
evidentiary steps. It requires evidence as to the recognized standards of the medical community in
the particular kind of case, and a showing that the health care provider in question negligently
departed from the standard in treating the patient. Three elements must be proven through expert
testimony in order for the plaintiff to prevail in a professional liability case: (1) that a duty was
owed by the health care provider to the patient; (2) that the duty was breached; and (3) that a causal
connection existed between the breached duty and the injury sustained by the patient.” 3 The
plaintiff must prove the test, more probably than not (greater than 50%) in order to establish
negligence. The following is a practical application of these legal concepts to actual case studies.
1. Effective Systems
Offices and hospitals must be run with efficiency and organization to be successful. Policies
and procedures are established, either in writing or understood, to handle information and
equipment in an effective manner. Health care professionals, whether in a hospital setting,
an emergency department, a clinic, a nursing home, or a sole practitioner, are no different. In
fact, it is imperative that health care professionals establish an effective and organized
system for gathering and disseminating patient information and providing patient care.
There are many components to consider in establishing such a system. Some are based on
business goals of providing high quality service to patients; some are required by law in
regulations such as the Heath Insurance Portability and Accountability Act (HIPAA) or in
state statutes; and others are done in an effort to prevent future professional liability claims.
Such “loss prevention” precautions can be analyzed through case studies – learning from the
mistakes and the good work of others.
Internal Policies and Procedures: Not only is it important to have procedures in place
for handling toxic and harmful materials, but office and hospital staff, from physicians to
receptionists, must follow established procedures diligently.
1
Kionka, Edward J., Torts in a Nutshell, §1.1 (4th ed. 2005)
2
Id.
3
Wozniak v. Lipoff, 242 Kan. 583, 587, 750 P.2d 971 (1988); Pattern Instructions Kansas §123.01 (4th Civil 2008)
1

8. Case Study #1: A 6-year-old female was seen by an advanced registered nurse
practitioner (ARNP) in a clinic for strep tonsillitis. When the child was sent to the lab for a
strep test, she placed her hand in what she thought was a bucket of toys (it was actually a
sharps container which had been placed on the floor next to her chair) and sustained several
puncture wounds. Earlier in the day, blood had been drawn from an HIV patient. The
incident was reported to the supervising physician who approached the mother and
explained that there had been an HIV positive patient in the lab earlier that day. After
consulting her supervising physician, the ARNP consulted a pediatric infectious disease
physician by phone to determine post-exposure prophylaxis (PEP). The consulting
physician’s secretary called back with a hotline number for the National HIV Aids Consult.
The physician on the hotline stated that in unknown needle stick situations, with possible
exposure to HIV, a PEP regimen consisting of Lopinavir-Ritonavir (Kaletra), 3TC (Epivir),
AZT (Retrovir), and a complete blood count (CBC) and liver function tests are suggested.
The hotline physician inquired as to the status of the known HIV patient whose blood had
been drawn earlier in the day. After that information was obtained, the hotline physician was
again consulted and agreed with the initial PEP regimen. The child followed up in the office
with diarrhea attributed to the HIV medications. Medications were adjusted after the
supervising physician consulted an infectious disease physician and more lab tests were
ordered. Six days later, the patient was seen in the emergency room and in the office for
gastrointestinal (GI) upset and nausea, again attributed to the medication. The parents
switched care to another physician in the area.
Analysis: Our experts opined that the situation was handled as well as could be expected.
All felt the treatment received by the child after the possible exposure was satisfactory. One
expert stated that even if the child had been stuck with an HIV positive needle, the risk of
transmission would be .3%. If prophylaxis were added after exposure to an HIV positive
needle, then the risk would be less than .1% for transmission. Also, all said that if the child
tested negative at six months after possible exposure, there was no reason to worry about
converting in later years. The hotline physician stated that treatment for 28 days was
optional, not absolutely necessary, and the medications were not benign in themselves,
sometimes causing side effects. The long-term effect of the medications was not known;
however, the stomach ache and nausea experienced by the child were not considered serious
complications.
Keeping in mind the three elements of the test to prove negligence, the system failure of
leaving the sharps container on the floor was clearly below the standard of care, especially
considering minor patients may be in the room. Further, it can probably be assumed that
there was either a written or understood policy, which was violated by an employee, against
leaving a sharps container within the reach of children. However, the patient was not
severely injured; the patient did not develop HIV; nausea was not a serious complication;
and the situation was handled appropriately according to experts. Other factors must be
considered. This was probably not a good case to present to a jury. It would be a struggle for
the jury to see past a little girl sticking her hand into a container full of potentially
contaminated HIV needles.
Outcome: In addition to the medications, the patient underwent HIV testing initially, one
month post-exposure, and four months post exposure. All tests were negative, and other labs
were okay. The decision was made to offer a small settlement.
2

9. Points to Remember:
 Make sure there are policies and procedures in place at your clinic or hospital that
protect your patients, your staff, and you.
Periodically review your policies and procedures, and perform an office assessment to
ensure that those policies and procedures are being followed. [For a sample of KaMMCO’s
Loss Prevention Assessment, go to www.KaMMCO.com, click on the Practice Management
tab, then click on Risk Management; Operational (Systems) Risk; Loss Prevention
Assessment.]
Internal Communication: It is especially important in a physician’s office, clinic, or
hospital that the right hand knows what the left hand is doing. Many clinics and hospitals,
small and large, have regular turnover in staff. Developing a system of communication and
office policies, and educating staff and healthcare professionals about them can potentially
reduce the risk of litigation. Creating an atmosphere of open communication with
guidelines, keeping a neat work area, a consistent filing system, and establishing a work
flow and hierarchy for the dissemination of information are methods for preventing claims
related to poor internal communication. A regular review of the systems currently in place
may be in order.
Case Study #2: A patient called a clinic with complaints of chest and back pain. He
spoke to a receptionist and told her he was coming to the clinic. Before she could transfer
the call to the physician assistant (PA), the patient hung up. The patient came into the clinic
soon thereafter, checked in, and waited in the waiting room to be seen. When his name was
called (approximately 12-16 minutes later), he was unresponsive. Resuscitative measures
were undertaken and he was transferred to the hospital. He was ultimately diagnosed as
having a myocardial infarction (MI) with anoxic encephalopathy. The PA testified that if the
patient called in complaining of chest pains, sweating, and thought he was having a heart
attack, the PA would have expected the receptionist to tell the patient to stay home and the
clinic would call 911. The PA indicated that if the patient came to the clinic, he would have
expected the receptionist to immediately notify him of the patient’s arrival so he could
assess the patient and have the emergency medical technicians (EMTs) come to the clinic if
necessary.
This case took place in a small town clinic where the ambulance service was approximately
two blocks away. A defibrillator was part of the ambulance service, so the clinic did not
keep a defibrillator on site. The PA’s understanding was consistent with the office
manager’s understanding of office policy. The phone receptionist had been working at the
clinic approximately two weeks and testified she was aware of the same policy. At the time
of the incident, the phone receptionist recognized the patient was in distress when he called
but she did not call 911 since the patient hung up before she could have the nurse or PA talk
to him. She also did not get the correct name on the initial call. She talked to the nurse
before the patient arrived, who speculated (correctly) as to which patient might have called
with the complaints. The phone receptionist was told to notify the nurse or PA immediately
upon the patient’s arrival. However, a different receptionist was working at the check-in
desk. According to the testimony of the check-in receptionist, the phone receptionist did not
3

10. advise her to let the nurse or PA know when the patient arrived, nor was she made aware of
the phone call. In fact, the check-in receptionist spoke to the patient twice--once to check
him in and once to get additional information. During the two conversations, she did not
notice signs of distress. The phone receptionist was not aware of the patient’s arrival and, in
fact, did not know how long he had been waiting when he was found in his unresponsive
state. Obviously, she did not notify the nurse or PA of the patient’s arrival. The check-in
receptionist indicated from where she and the patient were seated, she could not see him;
but, she did hear, after some time, what sounded liked snoring. She checked on him and
surmised he did not look “right” (his false teeth were falling out) so she asked the office
manager to check on him. The office manager then contacted the nurse. The clinic records
indicate the patient was sitting in the waiting room approximately 15 minutes.
Analysis: This case is a good example of how important it is for all staff to be well
informed and educated on handling emergencies. The receptionist was the patient’s
connection to the physician or PA. Because of the breakdown in communication, the PA
never had a chance to help the patient. The clinic had a protocol in place for handling
emergent situations, but employees did not follow it. There was a breakdown in
communication between the receptionists which proved to be a determining factor in the
care provided to the patient. There were mitigating factors present which probably helped in
reducing the amount for which the case settled at mediation. Some comparative fault can be
placed on the patient for not calling 911 or otherwise communicating his belief at check-in
that he was having a heart attack. There was also an argument that, had they known
immediately that the patient was there, they would have been able to only act a couple of
minutes faster, which may not have affected the outcome of the case.
Outcome: The patient is currently living with his sister and brother-in-law. He suffers
from memory loss and is easily confused and does not remember any details of the incident.
He can no longer work but he can feed, bathe, and clothe himself. His heart muscle suffered
very little damage. The plaintiff demanded non-economic damages plus reimbursement for
his medical bills and some lodging. Plaintiff did not claim any wage loss, future loss of
earnings, future medical expenses, or other items of economic damage. The claim was
settled for a reasonable amount.
Points to Remember:
 Effective communication requires a team approach. Routinely train staff on how to
communicate important patient information to the appropriate staff member.
 During emergent situations, remain in control and gather all essential information such
as the patient’s name and the symptoms they are experiencing.
2. Patient Communication
Lawyers are known to complain that practicing law would be great but for clients. Health
care professionals may feel the same way about patients, at times. Of course, all health care
professionals know that if clients and patients did not need them, there would no longer be a
need for legal and health care professionals. Helping people is typically the motivation
4

11. behind such a career choice. Though the patient is one of many to the health care
professional, the patient views the health care professional as the one holding the answers to
their urgent concerns. Patients assume communication from the health care professional will
be effective and efficient.
Coordinated Patient Care: Adequate medical care often includes referrals to
specialists. Although the “captain of the ship” theory is no longer the standard in many
states, multiple health care professionals must communicate with each other to provide
comprehensive care to the patient. Without a captain, the entire crew is responsible for
making sure important information gets to the patient. Often, there is a primary care
physician (PCP) making the referrals who coordinates the patient’s care with specialists.
Each health care professional is focusing on their piece of the puzzle; however, if the team is
not communicating with one another, tests can get lost or forgotten and important
information is never passed on to the patient.
Case Study #3: A patient’s PCP referred her to a surgeon for a hysterectomy. The
surgeon did a routine pre-op chest x-ray and an abnormality (lung lesion) was found. The
radiology report stated “bi-apical soft tissue mass with central cavitations of the right upper
lobe is seen and may represent granulomas.” The radiologist recommended that outside
films be compared to determine and evaluate the chronicity of the lung apical mass. If no
prior films were available, a follow-up chest CT was indicated. Both the PCP and the
surgeon received a copy of the radiology report, but neither physician discussed it with the
patient or followed up on the abnormal film. The following day, the surgeon, with the
assistance of the PCP, performed a total abdominal hysterectomy and bilateral salpingo-
oophorectomy on the patient. She was discharged from the hospital six days later. The
surgeon provided postoperative care for two months. The PCP and ARNP also saw this
patient one month and three months after the surgery. Eighteen months after the surgery, the
patient was diagnosed with Stage 4 non-small cell carcinoma of both lungs. She died four
months after being diagnosed.
Analysis: The delay in diagnosis of the patient’s non-small cell carcinoma for 20 months
decreased her chance of survival. It is probable that if diagnosed when the cancer was Stage
I, the patient’s five-year survival rate would have been between 60-70%. This result clearly
exhibits a deviation that caused or contributed to an injury (the causation element of the
analysis). The experts predicted that the delay caused substantially more damage than the
patient would have suffered had the test results been conveyed sooner. The PCP stated she
did not order the films so she did not read the report (she did initial the report). The surgeon
felt that although he ordered the report, it is the PCP’s responsibility to follow up on it. The
PCP said she generally has so much paperwork, she could not possibly be expected to read
everything so she never reads reports for tests ordered by other providers.
Outcome: The case settled at mediation for a sizeable amount, with the surgeon
apportioned two-thirds of the amount and the PCP apportioned the other one-third.
5

12. Points to Remember:
 When physician-to-physician communication lacks critical data, the one who suffers the
most is the patient.
 Develop a structured communication protocol that enables you to discuss the situation,
background, assessment, and any recommendations based on test results.
 The failure to record and follow up on test results could lead to increased risk exposure.
 Never sign off on anything without having carefully read it.
3. Patient Care Issues
A physician once summed up appropriate patient care: “Patients do not expect their
physicians to be perfect – but when the chips are down, they expect them to be available,
concerned, present, and honest. Hint: In the patient’s eyes, if you are not present, you don’t
care.” Medical professionals are caregivers. Beyond the incredible amount of expertise,
experience, and knowledge they possess, physicians want to make the patients feel better.
Sometimes, however, issues arise when medical professionals focus on the science (trying to
solve the patient’s medical problem) and forget about the art (and heart) of practicing
medicine.
Informed Consent: The law dictates that patients must be informed of the risks and
benefits of a procedure before undergoing surgery. The legal wording found on the average
consent form signed by the patient prior to the procedure can be difficult to fully
comprehend if the patient is in a state of shock or nervous anticipation. Yet, patients and
their families are asked to sign the form to acknowledge they have been told about the risks
of the procedure and that they understand and accept them. It is beneficial for the physician
to take the time to sit down with the patient and “interpret” this information for them. The
physician should seek out questions from the patient and make sure they understand the
risks and benefits of the procedure. The “Informed Consent” concept is that the patient will
learn enough from his or her physician to make an informed decision.
Case Study #4: After a renal cyst was confirmed by CT scan, the PCP sent this 39-year-
old female to a specialist for a consultation. At that time, the patient was not experiencing
any pain associated with the cyst. A renal scan the following month showed good kidney
function. The specialist decided not to remove the cyst, due to its location (intra-renal), the
likelihood that the cyst would reoccur, and potential complications associated with the
patient’s obesity. A year later, the patient returned to the specialist, at which time a CT scan
revealed three kidney stones. She was started on Urocit K (potassium citrate), with orders to
return in one year. The patient did not return to the specialist until three years later. At that
time, she remained asymptomatic. A CT scan revealed that the renal cyst had enlarged, that
the three kidney stones were still present, and a liver hemangioma had grown slightly.
Urocit K was re-started.
6

13. Ultimately, the specialist determined that an operative laparoscopy was indicated to remove
the renal cyst. Two months later, the patient was admitted to the hospital to undergo three
procedures to be conducted during the same overall surgery. First, the defendant, Surgeon 1,
and Surgeon 2 did a laparoscopic ablation of the cyst. Second, Surgeon 2 performed a
cholecystectomy. Third, Surgeon 3 finished with a laparoscopic, vaginal assisted
hysterectomy. The procedures appeared to be without complications, and the patient was
admitted to the hospital for an anticipated one-week recovery period.
During the next few days, the patient ran a fever, spiking to 103 degrees on the third day
post-surgery. Also on that date, a CT revealed a moderate amount of free air in the pelvis.
X-rays and a CT scan taken one week after the surgery revealed an increase in the amount of
free air beneath the diaphragm and bilateral pleural thickening. The patient experienced
worsening abdominal pain and cessation of bowel movements. An infectious disease
specialist was consulted and his impression was acute renal insufficiency, hypoxia, urinary
tract infection (UTI), and possible intra-abdominal infection. The next day, a general
surgeon performed a diagnostic laparoscopy, converted to an exploratory laparotomy, which
revealed a perforation in the colon with leakage of bowel contents. The patient was given a
colostomy and loop ileostomy (which remained for six months).
Due to the large amount of infection and edema, an abdominal wound vacuum was placed
with the abdomen left open, and antibiotics were begun. The patient was transferred to the
intensive care unit (ICU) where she remained for four weeks. The patient was discharged 44
days later with the wound vac still in place. Eight subsequent procedures were required to
re-open the abdomen, replace the wound vac, irrigate the abdominal cavity, and/or
place/tighten a Whitman patch.
Analysis: The patient originally asserted various claims of negligence against the
defendant physician, but, due to the singular criticism in plaintiff expert’s report, the case
boiled down to one of a claimed lack of informed consent. Fortunately, the defendant
physician engaged in conservative treatment of the patient. Knowing that surgery would be
difficult for her, he monitored her condition over several years. During that time, the
physician had several discussions with her about the possibility of surgery and the risks and
benefits of the surgery. The fact that they chose not to do surgery for quite some time was a
good indication that the patient was aware of the risks and was choosing, at least during that
time, not to risk surgery. It was only when the physician and the patient decided together
that the risk of not doing surgery was going to be greater than the risk of surgery that the
decision was made to go forward. This is a great example of working with a patient to make
an informed decision. Even with a very unfortunate outcome for the patient, the physician’s
care could be defended at trial.
Outcome: The decision was made to take this case to trial based on the excellent care
provided by all involved even though the course for the patient was difficult and
unfortunate. It was decided to stipulate to damages of $880,857.90 (medical expenses of
$362,137.90, wage loss of $18,720, pain and suffering capped damages of $250,000 and loss
of spousal support damages of $250,000) to try to keep out the horrendously bad facts
concerning patient’s recovery. By stipulating to damages, the patient was not allowed to
present any evidence to the jury pertaining to her difficult course and recovery. Rather, the
patient could only present evidence on the liability issue of informed consent. Evidence was
7

14. presented about the defendant physician’s discussions with the patient and she testified
regarding her understanding of the risks. The case was presented to a jury and a defense
verdict was returned in two hours. The patient appealed, claiming jury instruction errors.
She ultimately lost her appeal.
Points to Remember:
 Informed consent is a process, not merely a piece of paper. This is an opportunity to
educate your patient.
 Be advised that patient comprehension may be a barrier to informed consent.
 Always document that you explained surgery performance, benefits, expectations, risks,
and other related information to the patient.
Failure to Diagnose/Treat: The issue of failure to diagnose is a recurring subject of
professional liability claims. Patients expect physicians and other health care professionals
to be all-knowing, symptoms are not always clear predictors of the ultimate problem, and
patients have a difficult time accepting the sudden loss of a loved one. The culmination of
emotions and anger over the loss often leads patients and their families down the path of
blame. The physician is the most logical and lucrative target.
Case Study #5: An emergency room (ER) physician saw this 40-year-old male patient in
the ER with complaints of chest pain. The pain was sharp and burning in his mid-chest area
and, at the time, was waxing and waning. The patient rated the pain as 4 on a scale of 1-10 at
the time. He told the ER physician that he had no significant past medical history and was
taking no medications. Review of systems was negative. The patient admitted to smoking
two packs of cigarettes a day, occasional use of alcohol, and a distant history of cocaine use.
He also related that he drank 1-2 pots of dark coffee per day. He did not see a local
physician. Physical exam was essentially normal, although blood pressure was noted to be
148/90. Heart rate was regular with no murmur. Lungs were clear. No EKG was performed.
However, the physician noted that the patient was on cardiac monitoring while in the ER,
and there was no evidence of arrhythmias, ST elevation, or depression on the monitor.
The ER physician empirically treated the patient with a GI cocktail, which completely
resolved his pain within five minutes. The physician diagnosed esophagitis and
gastroesophageal reflux disease and discharged the patient from the ER with dietary
modifications and instructions to take Previcid 30 milligrams two times daily for eight
weeks. The physician also instructed him to contact the ER if his symptoms worsened,
provided the patient with a referral to a PCP, and instructed him to follow up within 2-3
days.
Shortly thereafter, the patient was returned to the ER by ambulance after having been found
unconscious at his home. The same ER physician again assumed his care. According to the
patient’s girlfriend, who had accompanied him on the prior ER visit, his chest pain began to
recur approximately ten minutes after they arrived home. She left the room briefly and then
returned to find him lying on the floor with no respirations. He was resuscitated in the ER.
8

15. He was flown to another facility where he was diagnosed with a 99% occlusion of the
proximal left anterior descending (LAD). He never regained consciousness and died.
Analysis: Our attorney consulted an expert to review the facts and provide an opinion of
the medical care provided. He opined that the ER physician fell into the trap in which many
physicians fall – that of believing the patient too much. The expert said the ER physician
appeared to have been unduly influenced by the patient’s own minimization of his
symptoms of epigastric pain and his lighthearted attitude in the ER. This led the ER
physician away from a diagnosis of potential cardiac pain, which resulted in his decision that
an electrocardiogram (EKG) was not necessary. The expert stated that, in this day and age, if
a patient complains of chest or epigastric pain in the ER, an EKG is part of the routine
workup. He also felt that had an EKG been done, it would have been abnormal and
prompted an immediate admission to the hospital. The expert placed some blame on the
patient for not sharing very pertinent information such as prior episodes of chest pain,
including chest pain on exertion. In fact, the patient specifically denied those things when
asked. He also agreed that it was questionable whether the patient would have survived his
MI, even if it had occurred in the hospital. Nonetheless, he stated that the patient would
probably have been admitted anyway, his denials notwithstanding, and that the hospital
would have been the better place to be when he had his cardiac arrest later that morning.
There are mitigating factors mentioned above; however, the ER physician provided
substandard care in failing to perform an EKG, in dismissing the patient prematurely, and in
misdiagnosing the problem. Although he did not cause the patient to have a heart attack, this
is a case where causation is the failure to prevent the damage.
Outcome: This case settled at mediation for an amount within the physician’s primary
insurance limit.
Points to Remember:
 Some patients are not always completely honest. Follow your training and experience in
assessing the condition and in deciding on a course of treatment.
 Do not always assume that the most likely diagnosis is the correct one. Oftentimes, it is
the least likely diagnosis that can be catastrophic if missed.
4. Litigation Issues
There is more to taking a case to trial than defending good medicine. The legal side of the
case presents different challenges in presenting a successful case to the jury—a world in
which most physicians are unfamiliar. There are numerous issues that arise during the
course of a lawsuit that could impact the defensibility of the case, many outside the control
of defense counsel. Issues such as venue, judge, jury, opposing counsel, and statutory and
procedural constraints are types of legal issues that are difficult to control and which could
have a significant impact on the case. Others, however, can be controlled by the defendant
and counsel.
9

16. Finger Pointing: Finger pointing is a troublesome and common litigation issue. It is
natural to think you did nothing wrong and to blame others for the problem. A successful
legal defense focuses on defending the care of each individual provider without crossing the
blame barrier. This takes self control and trust in legal advice that sometimes feels counter-
intuitive.
Case Study #6: A 57-year-old male patient saw his PCP for swelling, tightness and pain
in his left leg. The next day, a chest x-ray was taken and read by Radiologist 1. His
impression was “No acute abnormality demonstrated.” Ten days later, the patient had an
emergent fasciotomy and evacuation of a hematoma of the left leg, and aspirated upon
extubation. The patient saw his PCP for follow up one month after the procedure. A chest x-
ray was read by Radiologist 2 with an impression of “normal with development of linear
atelectasis in the right perihilar region.” Two months post-surgery, the patient underwent a
chest x-ray read by Radiologist 3, which found there was mild prominence to the left
suprahilar region similar to films taken one month post surgery, but no change. Radiologist
3 suggested a comparison with old films to re-evaluate the region or, if no old films were
available, a CT would be helpful to help exclude a mass. The PCP compared this film to
previous films, but did not order a CT scan.
The PCP saw the patient four months post-surgery and another x-ray was taken. Radiologist
4 stated that “the left suprahilar fullness appears very similar to the (two months post-
surgery) exam and chest stable since (two months post-surgery) exam.” The PCP saw the
patient at five months post-surgery, eleven months post-surgery, and one year after the
surgery, and no films were taken.
The patient's next visit was fourteen months post surgery where he was seen by a physician
assistant (PA) for cough and chest congestion which had persisted for two and a half
months. The PA ordered a chest x-ray. That film was read by Radiologist 5 who stated there
was a "suspicious left suprahilar mass or infiltrate.” He suggested a CT scan for evaluation.
The patient had a CT scan which identified a lobulated mass along the mediastinum and left
upper lobe pleural surface. The mass was identified as adenocarcinoma. The patient was
diagnosed with poorly differentiated, Stage II-B cancer and died fourteen months later.
Analysis: This is an interesting case on many levels. The patient was fairly young, made a
good living for his family and had small children which made damages high. The fact that
all of the radiologists were partners created a unique dynamic. For the most part, the defense
attorneys felt they could zealously defend their clients without placing blame on the other
defendants. However, Radiologist 3 and his attorney struggled with this task. If the
physicians blamed each other, they would end up presenting evidence that would normally
be presented and have to be proven by the plaintiff. It is a self-destructive cycle and
generally does not benefit the defense team. There are situations where comparative fault
cannot be avoided. Radiologist 3 and his attorney felt this was one of those situations. There
was information in a screening panel decision indirectly implicating the other physicians. An
agreement not to compare fault by Radiologist 3 would mean foregoing the chance to
present the screening panel decision to the jury--a benefit they were not readily willing to
give up, especially since the panel decision also contained opinions favorable to Radiologist
3. Part of the solution in this case was for all of the parties to work together on a
collaborative approach to trial.
10

17. Outcome: The PCP settled with the patient for a substantial amount. Radiologist 5 was
not named in the lawsuit. It was decided that Radiologists 1, 2, 3, and 4 would defend their
care at trial. Radiologist 3, who did report the problem to the PCP, felt he did nothing
wrong. He also felt the problem was present in previous films reviewed by his partners, but
they missed it. To complicate matters, his attorney requested a concurrent screening panel
action which resulted in a positive opinion in favor of the care provided by Radiologist 3.
On the first day of trial before the official proceedings began, plaintiff offered to dismiss
Radiologists 1 and 2 if Radiologists 3 and 4 would not compare fault with them.
Radiologists 3 and 4 were reluctant to give up their right to compare fault but ultimately
agreed. The trial went forward against Radiologists 3 and 4 and resulted in a defense verdict
in favor of both health care professionals.
Points to Remember:
 Focus your efforts on defending your care, not criticizing the care of others.
 Trust and follow the advice of your attorney and defense team throughout the litigation
process.
Willingness to Defend Good Care: In many cases, a decision is made to defend the
medical care provided by the physician through trial. Sometimes, when such a decision is
made, the insured defendant is dismissed from the case prior to the trial date, either to
simplify a case against another defendant or because a settlement was received and the
plaintiff may feel a trial against the remaining defendant would be futile. In an efficiently
run case, it would take about two years for the attorney to prepare a case for trial. Some
cases, for various reasons, drag on for years. The bottom line is that a case cannot be taken
to trial without a defendant. Seeing a case through to trial takes stamina, attention, nerves of
steel, an understanding and supportive family or support system, patience, confidence (but
not arrogance), willingness to follow advice that may seem counter-intuitive, and
willingness to leave your medical practice during the full course of the trial. No easy task.
Case Study #7: A pregnant 17-year-old female patient received a free gender
determination sonogram. As per the hospital’s policy on free gender determination
sonograms, no report was made. The sonogram technician was not able to determine the
gender of the baby. The sonogram demonstrated a fetal developmental defect called
gastroschisis. The technician notified the patient’s PCP that there was an abnormality. The
PCP attempted to contact the patient eleven times during the week following the abnormal
finding. Finally, an office staff member was able to leave a message with an individual
thought to be the father-to-be, telling the patient to call the physician. The patient never
called in and “no-showed” for her appointment scheduled eleven days after the sonogram.
She did not present to the physician again until approximately two months later.
During the nearly two-month time span between the sonogram and the next appointment, the
physician forgot about the abnormal sonogram and did not discuss the finding with the
patient. The child was born by Cesarean section due to maternal chorioamnionitis at 37
weeks’ gestation. The child was transported to a tertiary care facility under the treatment of
11

18. a pediatric surgeon to repair the bowel. However, since all but approximately three inches of
bowel was dead, the surgeon closed the wound and informed the parents there was nothing
he could do. The child died after living in hospice care at home for approximately three
weeks. The patient alleged that the PCP fell below the standard of care and was negligent in
the care provided.
Analysis: While the standard of care does require a physician to inform a patient of an
abnormal sonogram, the patient also has a responsibility to actively participate in her care.
Being available by phone for reports from the physician, returning phone calls, and keeping
appointments are all part of a patient’s responsibility. The physician’s willingness in this
case to stand behind the care provided and remain committed to his own defense was greatly
tested by the inordinate length of time his case took.
Below is an abbreviated timeline of the case:
February 2002 The baby was born and died three weeks later.
December 2003 The patient filed suit against the physician and the clinic.
August 2004 The initial scheduling order was finalized and trial was scheduled
for May 2005.
March 2005 A Motion for Summary Judgment was filed and granted on behalf
of the clinic for lack of expert testimony criticizing the actions of
the clinic.
April 2005 A Motion for Summary Judgment was filed on behalf of the
physician.
May 2005 The trial was continued.
May 2005 The court granted the physician’s Motion for Summary Judgment
dismissing the physician from the case.
May 2005 The plaintiff filed a timely appeal to the Kansas Court of Appeals,
seeking relief from the Motion for Summary Judgment granted on
behalf of the physician.
March 2006 The plaintiff’s appellate brief was filed.
June 2006 The physician’s appellate brief was filed.
September 2006 The plaintiff filed a reply brief.
March 2007 Oral Arguments were heard by the Kansas Court of Appeals.
April 2007 The plaintiff’s appeal was denied by the Kansas Court of Appeals.
12

19. May 2007 The plaintiff filed with the Kansas Supreme Court a Petition for
Review of the opinion of the Kansas Court of Appeals.
October 2007 The plaintiff’s Petition for Review by the Kansas Supreme Court
was granted.
October/November The parties filed briefs with the Kansas Supreme Court.
2007
January 2008 Oral Arguments were heard by the Kansas Supreme Court.
May 2008 The Supreme Court reversed the Summary Judgment granted by
the district court and remanded the case back to where it started,
in state district court.
July 2008 The plaintiff filed an identical case in federal court based on
diversity jurisdiction (mom moved to Oklahoma).
July 2008 The plaintiff filed a Motion to Dismiss the state district court case
without prejudice.
July 2008 Trial was scheduled in federal court for January 2009.
August 2008 The state district court denied plaintiff’s motion to dismiss
without prejudice.
October 2008 The plaintiff filed a Petition for Writ of Mandamus with the
Kansas Supreme Court seeking review of the district court’s
decision to deny the motion to dismiss.
December 2008 The plaintiff filed a Motion to Stay the trial in district court
pending ruling from the Kansas Supreme Court.
December 2008 The plaintiff filed a Motion for Expedited Ruling with the Kansas
Supreme Court and a Motion to Continue Trial with the district
court.
January 2009 The district court continued the trial to July 2009.
January 2009 The Supreme Court denied plaintiff’s Petition for Writ of
Mandamus.
January 2009 The plaintiff voluntarily dismissed the federal court case.
July 2009 The case went to jury in district court.
Outcome: The physician finally went to trial on this case five years and seven months
after the claim was first filed. The result was a defense verdict in favor of the physician after
13

20. a six-day trial and one hour of deliberations. The physician and his family showed admirable
perseverance and stamina in seeing the case through many years of legal gyrations.
Points to Remember:
 Professional liability cases tend to be complex, time-consuming, and emotionally
draining.
 Be patient during the litigation process.
 Be committed to defending good medicine and defensible care.
 Ask questions and seek answers if there are case complications or occurrences you do
not understand.
Conclusion
The materials presented highlight cases which represent some recurring claims issues.
Hopefully, through this approach, it is evident that virtually all health care professionals may be
involved in a medical professional liability claim at some point in their career. Even the most
careful practitioner is susceptible. Prudent policies and procedures and effective communication
with the patient and other health care professionals can help prevent potential claims. However,
in the event a claim or lawsuit cannot be avoided, willing and active participation in the claims
or litigation process can be an integral part of a positive outcome.
14

21. NOTES

22. Supported by
Bennett Bodine & Waters, P.A.
Clark Mize & Linville, Chtd.
Cooper & Lee, L.L.C.
Foulston Siefkin LLP
Gilliland & Hayes, P.A.
Goodell, Stratton, Edmonds & Palmer, L.L.P.
Hinkle Elkouri Law Firm, L.L.C.
Hite, Fanning & Honeyman, L.L.P.
Holbrook & Osborn, P.A.
Horn Aylward & Bandy, LLC
Hudson & Mullies, LLC
Klenda, Mitchell, Austerman & Zuercher, L.L.C.
Logan Logan & Watson, L.C.
Martin, Pringle, Oliver, Wallace & Bauer, L.L.P.
Polsinelli Shughart, PC
Sanders Warren & Russell, LLP
Shaffer Lombardo Shurin, PC
Woodard, Hernandez, Roth & Day, L.L.C.
Wright Law Office Chtd.
Sponsored by
and
The University of Kansas School of Medicine-Wichita
Division of Postgraduate Education
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