Avoiding Medical Malpractice: Case Against Pulmonologist Offers Legal Insights

Editor’s note: This article marks the debut of the Legal Advisor series, a periodic feature series on legal issues faced by pulmonologists and critical care medicine physicians. Articles in this series will use case studies to illustrate topics such as the elements of medical malpractice, HIPAA, informed consent, delayed diagnosis, and other issues.

What are the elements of a successful malpractice case — and how can you avoid being party to such a case?

To be successful in a medical malpractice case, the plaintiff bringing the case must be able to prove 4 legal elements:

1. that there was a professional duty owed to the patient (this will always be the case in a doctor-patient relationship);
2. that there was a breach of this duty;
3. that injury was caused by the breach; and
4. that damages accrued as a result.

Without all 4 of these elements, a medical malpractice case will fail. Let’s take a look at a case involving a pulmonologist where satisfaction of these 4 criteria was critical to the outcome of the case.

The Medical Case: Mr H’s Treatment

On July 21, Mr H, who was 25 years old, was rushed into the emergency department (ED) of his local hospital following an accident on an all-terrain vehicle. Mr H had been thrown from the vehicle and sustained serious head trauma.

The patient was placed on a ventilator and computed tomography (CT) scans were taken of his head. Dr N was the neurosurgeon on call that night. He examined Mr H, reviewed the CT scan results, and determined that although the patient had suffered traumatic brain injury, surgical intervention was not required at that point.

Dr P worked as one of the hospital’s pulmonologists. The next day, July 22, he was called in for a pulmonology consult by Dr N, who sought advice on ventilator settings and on how to eventually wean the patient off the ventilator. Dr P conveyed his advice in writing in the patient’s chart as well as verbally to Dr N.

For the next couple of days, Dr N, the neurologist, ordered observation of the patient in the intensive care unit (ICU) and repeated CT scans. After July 24^th, Dr N stopped ordering CT scans based on his determination that Mr H’s neurological situation had stabilized. On July 27^th, Dr N informed Dr P that he’d made the decision to take the patient out of the ICU. Mr H was extubated, removed from the ventilator, and moved out of intense care.

The following day, Mr H’s condition deteriorated. He lost consciousness and was rushed back to the ICU, where he was reintubated and put back on a ventilator. An emergency CT scan showed increased cerebral edema that was affecting the patient’s brain stem. The intracranial pressure became uncontrollable, and Mr H died in the hospital on July 30.

The Legal Case

Mr H’s father, the administrator of his son’s estate, filed a medical malpractice lawsuit individually and on his son’s behalf the following year against pretty much everyone involved in his son’s care: the hospital, Dr N, Dr P, the radiologists, and the radiology practice.

For the purposes of this article, we will just follow what happened to Dr P.

Dr P consulted with the medical malpractice attorney provided by his insurance. The attorney had a pulmonology medical expert look over the records, with the expert concluding that Dr P had not done anything wrong.

The attorney made a motion for summary judgment, asking the judge to dismiss the case against the pulmonologist, because the plaintiff had not established the requisite elements of a medical malpractice case.

To support this motion, the defense submitted the expert affirmation of a pulmonologist, Dr E, who opined that:

1. Dr P’s pulmonary evaluation and management of Mr H was appropriate and within good and accepted medical practice at all times.
2. Mr H had been properly extubated on July 27, from a pulmonology standpoint, because the patient had been stable for 5 days.
3. Mr H’s unfortunate change in status on July 28 was not due to being extubated or due to pulmonology issues because, from a pulmonology perspective, the patient remained stable when he was reintubated. 

The Court Decides

To survive a summary judgment motion, the plaintiff must introduce evidence showing that there is a triable issue of fact that would require the case to go to a jury. In medical malpractice cases, this is usually established via medical expert testimony. As the court wrote in its decision on this case, “In a medical malpractice action, a defendant physician moving for summary judgment must establish either that there was no departure from the required standard of care or that any departure was not the proximate cause of the plaintiff’s injuries [emphasis added].”

In this case, the defendant pulmonologist introduced expert testimony showing that he had a duty to the patient that he had fulfilled, and not breached, and that any injuries were therefore not due to Dr P.

In trying to rebut this, the plaintiff introduced expert testimony — but from a neurologist rather than a pulmonologist.

The court ultimately granted Dr P’s motion and dismissed the case against him, holding that the plaintiff had failed to rebut Dr P’s expert who testified that Dr P had not breached his duty of care. The court faulted the plaintiff for using a neurologist as its expert, questioning the reliability of an expert testifying outside of his field of specialty. The court also noted that the plaintiff’s expert never refuted the defense expert’s testimony that Mr H was stable from a pulmonology viewpoint when he was extubated and taken off the ventilator, and that all care provided by Dr P was within acceptable standards of care. 

How do the facts of this case measure up with respect to the 4 legal elements that need to be proven in a successful medical malpractice case?

• Dr P did owe a duty of care to the patient, created by the patient/doctor relationship (meaning element 1 was proven).
• However, there was no breach of this duty (meaning element 2 was not proven).
• The injuries and resulting damages to the patient were not due to any breach on the part of Dr P (meaning elements 3 and 4 were not proven).

Therefore, the medical malpractice case against Dr P could not succeed.

Avoiding Malpractice: What This Case Shows

Even though Dr P did nothing wrong in this case, it did not prevent him from getting sued. But his actions — ie, taking careful notes and conferring with the neurologist — may have prevented the case from going any further than it did.