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News: A hairdresser caught her thumb in a sliding glass door and drove herself to the emergency room. X-rays were taken, and no fracture was revealed. But when she returned to the hospital 16 days later, it was agreed that she had a displaced fracture of the proximal phalanx of the left thumb. The hairdresser claimed that this resulted in a need for surgery and that she was left with permanent pain and disfigurement, impacting her ability to perform her professional duties and everyday activities. She brought suit against the hospital, radiologist, and emergency room physician. On the first day of trial, the hospital settled for $7,500 and the jury found in favor of the physicians.
Background: On the morning of Dec. 14, the woman, a hairdresser, inadvertently slammed her thumb in a sliding glass door. At the emergency department, X-rays were read as negative by the emergency room physician and radiologist. She was discharged, but returned later that afternoon saying she was still in pain. Repeat X-rays were not ordered. Nor were repeat X-rays ordered when she returned to the emergency department on Dec. 17. It was not until she went back to the emergency department on Dec. 30 that additional X-rays were ordered. Those X-rays revealed that she had sustained a fracture, which was now displaced.
Because the fracture was untreated for 16 days, the injury necessitated corrective surgery and resulted in the plaintiff having permanent pain, disfigurement, and disability, including a restricted range of motion that impacted her ability to perform her professional duties and everyday activities. The defendants denied that the plaintiff was injured in the manner or to the extent alleged. After the hospital settled for $7,500 on the first day of trial, the jury returned a verdict in favor of the defense for the physicians.
What this means to you: There are many factors to consider before determining whether a particular claim merits pursuit, says Stephen Trosty, risk management director at Physicians Assurance Corp., of East Lansing, MI. "Initially, one must assess the legitimacy of a claim so that it can be determined if the claim has substance and represents medical malpractice or is a claim that really does not have a malpractice basis. And, if malpractice is a potential, then the amount of potential damages must be reasonably assessed. These potential costs must be weighted against the cost of trial and potential cost of an adverse verdict. Many factors go into the decision of whether or not to fight or settle any given claim.
"Once the potential for damages is determined, the costs of taking the matter to trial must be evaluated vis-à-vis that estimated potential. This assessment must include the cost of obtaining expert opinions and other requisite witnesses as well as the depositions, interrogatories, witness fees, and attorneys’ fees associated with the procurement of such. This may also entail the assessment of interaction with the media [if necessary] and the potential impact on the physicians on one’s medical staff [including the time, and mental and emotional impact]. For instance, if the belief is that there is no liability but you must admit some liability and guilt to settle the nuisance claim, one should determine the potential impact on malpractice insurance rates and the potential need to report to the National Practitioner Data Bank those persons who should be reported. These are not easy decisions for risk managers to make," adds Trosty.
"Furthermore, if too many nuisance claims are settled, then the facility and/or associated physicians run the risk of gaining a reputation for being too willing to settle claims and be deemed unwilling to go trial and fight the good fight before a jury. The risk in settling is that additional nuisance suits may be brought against you and the case material becomes weaker over time in the hopes of easy money for the plaintiff," notes Trosty.
"In addition, the risk manager must determine the strength of their legal counsel and their reputation in the local legal community. One does not want to seem too willing to settle because their team is not able to win at trial or seemingly afraid to take legitimate issues before a jury. Settling a nuisance claim should be considered in the context of the whole matter, including counsel," adds Trosty.
"The status and demeanor of the plaintiff as well as defendants must also be considered. There are some plaintiffs more sympathetic to juries than other. They may compel stories that are more likely than not to appeal to any jurist sensitivities and these too must be taken into account. On a related note, the jurisdiction in which the matter is to be considered must be taken into consideration. For instance, if the economy is in a downturn and jobs are tight, the potential loss of employment for the plaintiff might become a factor underlying the juror’s mind. Further, the strength or weakness of your defendant might also play a pivotal role in the determination to go forward or to settle. If you clearly are going to have difficulties with the defendants, then settlement may be an option," he states.
"Bottom line: The decision to stay and fight or settle a claim involves evaluation of the many facets and nuances of the case. No two claim situations are alike, and each factor must be weighed individually before a final decision can be reached. In this particular instance, the factors lead to settlement, and even in light of the favorable defense decision for the physicians, one must assume that settling for $7,500 was the best decision for the hospital," concludes Trosty.
• Carmela Lisa Freedman vs. Emergency Physicians Group Ltd., Dr. William Graffeo, Dr. Robert Broadhead, Dr. Reza Parsavand, and Highland Park Hospital, Lake County (IL) Circuit Court, Case No. 98L-814.