Written by: Patricia I. James**
I watched the first episode of “Monday Mornings,” the new television series on TNT created by David E. Kelley. Mr. Kelley has created or been involved in various series including Ally McBeal, Boston Legal, Boston Public, Chicago Hope, Doogie Howser, M.D., LA Law and Picket Fences. This show involves five surgeons in a hospital and explores their professional and personal lives.
The reason I am writing a post on this episode is based on a scene involving peer review of one doctor’s case. The most common educational setting for this review and discussion is known as Morbidity and Mortality (“M&M”). This is where physicians discuss other doctors’ behavior or analyze an adverse event. The information gleaned during M&M is not discoverable in most states. The reason is to have open communication and enable doctors to learn from their mistakes and try to prevent future ones. Doctors are going to be less forthcoming with regard to errors they have made if what they say can be used in a medical malpractice case.
In this episode, a Dr. Martin had seen a 39 year old woman who, on August 12, presented with soreness of her left hip. Since she was an avid runner, averaging 30 miles a week, he thought the hip irritation was due to running. He prescribed 1000 mgs of extra strength Tylenol until the pain subsided. He did not hear from her again.
The next time he saw her was on December 19 in the emergency room. She had a broken hip. He then ordered an MRI(FN1) with contrast which revealed Stage IV(FN2) bone cancer.
The Chief of Surgery, in charge of M&M, asked him if he had done a full physical exam or order x-rays or blood work the first time he saw her. No, he only prescribed Tylenol. The Chief of Surgery said, “You allowed her metastatic cancer to run amok for four months.” She was admitted to ICU on December 19 and aggressive cancer treatment was started immediately. She died the day before M&M, three weeks after diagnosis. The Chief of Surgery recommended that all privileges at the hospital be pulled immediately.
A relevant jury instruction would be CACI 505(FN3) . As edited for this case, it states that “a doctor is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. A doctor is negligent only if he was not as skillful, knowledgeable, or careful as other reasonable doctors would have been in similar circumstances.”
Since this was being handled in M&M, we will assume that the Chief of Surgery had looked into the matter and determined that Dr. Martin had in fact been negligent, i.e., that Dr. Martin was not as skillful, knowledgeable, or careful as other reasonable doctors would have been in similar circumstances since they would have done a physical and ordered x-rays and blood work.
Let’s pretend that this is a case that came into my office. I, of course, am not privy to what happened in M&M. I would explain to the woman’s survivors that we would have to have an expert who could opine, within a reasonable degree of medical probability, that, had the doctor done the physical, the x-rays were taken and/or blood work done, they could have diagnosed the cancer in time to save her life.
There are two important points here. First, it would have to be proved that the cancer could have been caught in time. It is possible that, when she first presented at the emergency room, the cancer was already at Stage IV and this doctor’s inaction could not alter the outcome. Thus, no case.
Second, the expert could opine, to a reasonable degree of medical probability, that the cancer would not have been able to be diagnosed when Dr. Martin saw her since it had not reached a stage where it could have been diagnosed. It was simply a very aggressive cancer which progressed to Stage IV in a very short period of time. Again, no case.
In sum, doctors can make mistakes. They are only negligent if they fail to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful doctors would use in the same or similar circumstances. This level of skill, knowledge, and care is sometimes referred to as “the standard of care.” CACI 501. In addition, and this is a very important addition, the plaintiff (meaning the person suing) must prove all of the following: (1) The doctor was negligent (he or she fell below the standard of care) ; (2) The Plaintiff was harmed; and (3) The doctor’s negligence was a substantial factor in causing Plaintiff’s harm. CACI 400. If you can’t prove this, then no case.
FN1: Magnetic resonance imaging (MRI) is a test that uses a magnetic field and pulses of radio wave energy to make pictures of organs and structures inside the body.
FN2: This stage, which is the most serious, is where cancers have often spread to other organs or throughout the body.
FN3: CACI are California civil jury instructions.
**No portion of this Post is intended to constitute legal advice. The views expressed are solely those of the author.