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News: The patient, a 17-year-old man, presented at a hospital emergency department complaining of pain on and around his right eye in July 2010. At the hospital, he was seen by nursing staff and a physician assistant. The physician assistant diagnosed the patient with a form of conjunctivitis, commonly known as "pink eye." A supervising physician of the emergency department signed off on the physician assistant’s diagnosis. The patient was given a prescription for antibiotics and discharged from the hospital within a few hours of being admitted. In November 2010, an aneurysm burst inside the patient’s brain, which caused serious damage. The patient suffered serious, permanent brain damage as a result of the burst aneurysm. The patient’s guardian brought suit against the physician assistant, the supervising physician, the hospital, and the hospital’s staff service provider. All defendants denied any liability. The jury found the physician assistant, the supervising physician, and the hospital liable and awarded $13.2 million in damages.
Background: In this matter, the patient was a 17-year-old man who presented at a hospital emergency department complaining of pain on and around his right eye in July 2010. After being admitted to the hospital, the patient was attended to by nursing staff and a physician assistant. The physician assistant physically examined the patient and diagnosed him with a form of conjunctivitis, commonly known as "pink eye." A supervising physician responsible for the emergency department at the hospital approved of the physician assistant’s diagnosis, but this approval was done without the supervising physician personally examining the patient. With this diagnosis approved, the patient was given a prescription for antibiotics and was discharged from the hospital only a few hours after being admitted while complaining of pain on and around his eye. No further testing was done to determine if a different condition caused the pain.
Four months later, in November 2010, the patient suffered a ruptured aneurysm. The patient was rushed to a facility for emergency surgery to treat the condition, but despite these attempts, he suffered serious injuries, including permanent brain damage as a result of the burst aneurysm. At the time of trial, the patient testified that he had trouble concentrating and remembering things, and he said he suffered from regular seizures. His description of the seizures to the jury was that it felt like "getting electrocuted and jumping like a fish on the floor." The patient permanently lost use of his left hand, walks with a cane, and his lawyers argued in court that he will require a life coach and caretaker for the rest of his life.
The patient’s guardian brought suit against the physician assistant, the supervising physician, the hospital, and the hospital’s staff service provider. Prior to trial, the hospital’s service provider was dismissed from the case, but the remaining defendants remained.
The plaintiff alleged that the physician assistant’s diagnosis was incorrect and, based on the patient’s presentation in the emergency department, further testing was required to correctly diagnose his condition. Furthermore, according to the plaintiff, the supervising physician was negligent for failing to properly supervise the physician assistant and for approving the diagnosis without actually examining the patient.
During trial, the plaintiff had an emergency department expert testify that had the original physician assistant or supervising physician ordered a CAT scan and other appropriate testing, the condition could have been detected during the original July visit and the brain aneurysm could have been detected behind the patient’s right eye. According to expert testimony, had this brain aneurysm been detected, treatment could readily have prevented it from bursting and causing the serious brain damage. Furthermore, expert testimony also stated that this action would have been the correct one to take, following the required standard of care for reasonable physicians given the circumstances. The defense’s physicians attempted to argue that the proper treatment was given, according to the teen’s presentation in the emergency department, which would not have caused a reasonable provider to do further testing.
There were allegedly discrepancies with what the patient told the hospital staff at the time of the first examination. The hospital staff claimed that he reported eye pain, not head pain, and it was unclear which eye was in pain. The medical record showed that the pain was on the left side, while the patient claimed it was on the right, and a headache and eye pain can be caused by different conditions.
After a two-week trial, the jury mostly agreed with the plaintiff and awarded $13.2 million in damages. However, the jury partially agreed with the defense: It distributed liability equally among the physician assistant, the supervising physician, and the hospital at 30% each, in addition to 10% negligence on the patient for his discrepancies and inconsistent reporting to the hospital. This 10% negligence on the plaintiff reduced his overall award down to $11.88 million.
What this means to you: This case further illustrates the dangers inherent in the delegation of work within the medical field. While the previous case had an issue with a resident-in-training, this case had an issue with a physician assistant. Most urgent care centers and emergency departments use nurse practitioners and physician assistants in one or more capacity to support physicians. Physician assistants generally are considered licensed independent practitioners. The initial triage of patients as they enter a facility for urgent or emergent care usually will determine what level of provider will be assigned to the patient. The supervising medical staff organization of each facility is responsible for delineating the permissible activities and required supervision for each level of practitioner.
Although physician assistants are certified, licensed medical practitioners, they are not as qualified or specialized as a full physician, and this difference can create issues for liability among a practice group or within a hospital. States define differently the scope of physician assistants’ practice, and most states require them to be under the direct supervision of a fully licensed physician. For example, in New Jersey, the Physician Assistant Licensing Act (PALA) limits the procedures that a physician assistant is authorized to perform, which includes gathering a patient’s medical history, performing a physical examination, suturing and caring for wounds, and assisting a physician in inpatient rounds with the supervision of a physician.
Liability for the actions of physician assistants can be readily assigned to the hospital where the hospital employs the assistant and is responsible for the proper training and supervision of such assistants. Such hospitals, therefore, must ensure that physician assistants are allowed to perform only those activities as authorized by state law and that the assistants are properly trained and supervised by physicians. Similarly, training physicians regarding what are proper and improper activities for physician assistants to do will help to reduce liability of the hospital. Physicians themselves must also be careful in delegating their important duties to those who are less qualified to perform them. As evidenced in New Jersey’s rules, some states allow physician assistants to perform physical examinations of patients, but this situation should not increase the physician’s reliance on such an examination. A physician who improperly relies upon someone else’s examination and diagnosis, without objectively verifying the findings, does not satisfy his or her duty to provide the standard of care required by law.
In this case, the physician completely failed to examine the patient or verify the physician assistant’s findings. This process does not need to be a long one. The physician could have read the assistant’s findings and taken a few minutes to consult the patient herself. Even if the physician concurred with the assistant’s finding of conjunctivitis, which was likely an improper diagnosis that the physician could have corrected, the mere fact that the physician examined and reached this conclusion would have greatly strengthened her defense during the trial. Over-delegation of duties can lead to liability because there are standards in place that require that a physician perform certain actions himself or herself. Failing to do so falls below the standard of care and constitutes medical malpractice.
While a complaint of eye pain accompanied by drainage, swelling, and other signs of obvious infection without high fever can be diagnosed and treated by a physician assistant in most cases, the additional complaint of a headache changed the required care. More generally, providers must accept the fact that there can be more than one pathology coexisting within a patient at the same time. We often see diagnoses and subsequent treatments based on superficial symptoms while underlying symptoms go unheeded. It is the garden path of least resistance that practitioners get led down. To avoid this, it is the provider’s responsibility, regardless of level, to ask the right questions, and it is the patient’s (and guardian’s) responsibility to give the right answers.
Note that the defendants won a minor victory in this case by arguing that the patient himself was partially responsible for his own injuries. The jury found that the patient was 10% liable, and thus the overall damages were reduced by 10% on the theory of "comparative negligence." When a plaintiff is partially to blame, the damages are lessened by that same amount. This point can be a tricky one to argue, however, as a jury might perceive this to be a hospital or physician "blaming the victim." Stating that the (now) brain-damaged plaintiff is the cause of his own problems might not sit well with a jury, because the injured plaintiff is much more sympathetic than a hospital or physician. This case is an example of the tactic working well for the defense in that it reduced the overall damages award by 10%. This case justifies its limited use, according to the particular circumstances and rules of the jurisdiction. Different jurisdictions follow different rules regarding comparative negligence. Some jurisdictions follow an even harsher related regime of contributory negligence in which the defendant is barred from recovering if the defendant’s own negligence plays any role in causing defendant’s harm.