Tennessee jury demands defensive medicine

by Ted Frank on May 4, 2009

One out of ten colonoscopies result in nausea and vomiting; about one in 1000 colonoscopies will accidentally perforate the intestine, with potentially life-threatening side effects if not treated in a timely fashion. Kristen Freeman was one of the unfortunate one in 1000. While she complained of nausea and vomiting, she disregarded the instructions given to her about reporting her other symptoms, and so medical staff treated it like a more common case of nausea. By the time she admitted that her situation and pain was more dire, complications set in, and she suffered cardiopulmonary arrest, which in turn led to severe brain damage.

I won’t quibble with the jury’s assessment of damages of $12 million: Freeman was 33 and is now disabled for life, and in the randomness of noneconomic damages, $12 million isn’t the craziest award out there. But that the Hamilton County, Tennessee jury found gastroenterologist Michael Goodman 51% liable seems arbitrary. If doctors are required to assume that every patient reporting nausea but denying their situation is an emergency might be hiding more serious symptoms, and require them to go to the emergency room for testing (as the plaintiffs’ attorney argued Goodman should have done here), then that’s 100 wasteful emergency room cases for each real case—and not even a prevented case, since most patients follow instructions and report to the ER on their own when symptoms specific to perforation appear.

The article is on the Chattanooga Free Press web site, but the interesting discussion is in the comments, with friends of Freeman and seemingly knowledgeable doctors kibitzing. Freeman’s supporters argue that she did not actually experience any emergency symptoms and thus was not at fault at all. Even if true, that implies that they feel Goodman should be held responsible because he did not anticipate that Freeman was actually having an emergency when she presented asymptomatically: again, a demand for defensive medicine.

{ 11 comments }

1 throckmorton 05.04.09 at 6:51 pm

It is hard to make asymptomatic patients feel better! Lets get a ct on all patients after colonoscopy. Lets see, thats 2700 dollars added to the cost of each colonoscopy. Can you get that precerted through your insurance? Oh, you cant. What about the possibility that you have colon cancer and the colonoscopy is the only way to find out. Oh, you cant afford the copay? Have you tried calling your attorney, maybe they can sue so you can afford to have the colonoscopy.

2 Eric T. 05.04.09 at 10:22 pm

One out of ten colonoscopies result in nausea and vomiting; about one in 1000 colonoscopies will accidentally perforate the intestine, with potentially life-threatening side effects if not treated in a timely fashion. Kristen Freeman was one of the unfortunate one in 1000.

The article says it was the endoscopy, not the colonoscopy, that caused the problem.

While she complained of nausea and vomiting, she disregarded the instructions given to her about reporting her other symptoms, and so medical staff treated it like a more common case of nausea.

I read the article you linked to and it doesn’t say that.

the interesting discussion is in the comments, with friends of Freeman and seemingly knowledgeable doctors kibitzing.

One good reason that jurors are instructed not to talk about cases is so that they won’t be influenced by those with an agenda that aren’t in the courtroom listening to the actual evidence.

I find it’s also a good rule to keep in mind when blogging.

3 nevins 05.04.09 at 10:39 pm

Eric
The endoscopy and colonoscopy are in the context of this case the same thing. An endoscopy is looking in a body cavity through an endoscope, a generic cavity looking scope. Colonoscopy is looking in the particular body cavity called the colon, with an endoscope designed particularly for this purpose, called a colonoscope.

4 Ted Frank 05.05.09 at 7:31 am

“I read the article you linked to and it doesn’t say that.”

I fully disclose that I’m relying on the two sides of the story told in the comments (which, while they disagree about the proper result, agree on the factual premise that Freeman did not tell her doctor of any unusual symptoms). Perhaps both are invented, but I doubt it: the jury must have had some reason to ascribe 49% of fault to Freeman.

Reporters rarely have the space to tell the story of a trial, especially if, as seems to be the case here, they are only assigned the case after the verdict comes down, and have to rely upon dueling press releases/soundbites from the lawyers and focus on the human-interest element of the suffering plaintiff.

Reading between the lines of the article, it appears that the defense attorney has a grievance with the jury instructions (and I presume the plaintiff’s attorney would disagree with that grievance), but the reporter either did not have the space or inclination to investigate the legal issue that will ultimately decide the case on appeal or post-trial motion.

5 VMS 05.05.09 at 7:59 am

Endoscopy in this context refers to an upper GI (stomach and duodenum, jejunum) looksee. Eric T. @2 is correct that the article states that the tear was caused during the endoscopy just beyond the stomach in the patient’s duodenum. The patient was having nondescript long term “bowel problems,” so an endoscopy and colonoscopy were probably in order.

Colonoscopy injury cases that I’ve seen include performing an unnecessary procedure. There is no reason to perform a cancer screening colonoscopy in an otherwise healthy individual, before they turn 50, with no familial history of colon cancer . See http://www.mskcc.org/mskcc/html/65282.cfm

They also include the physician improperly delegating post-op care to an office clerk rather than to an RN where patient calls the number the physician gave her if she experiences abnormal pain, and an office clerk tells her not to worry becasue it’s probably gas. Diagnosing over the telephone is also improper. An in-person examination by a physician is needed if the patient complains of abnormal pain.
Pneumoperitineum (the result of a puncture of the colon) will show up on an ordinary x-ray.

Those of you who do not believe that the patient should be compensated for her injuries for the malpractice the jury found in this case are adopting a wilderbeast attitude where the lions kill a few, but the majority transverse the Serengheti unscathed.

6 William Nuesslein 05.05.09 at 9:10 am

This case looks more like adverse outcome than malpractice in the common sense meaning of the term. There was no indication that Dr. Goodman’s treatment was anything but routine. He certainly wasn’t a predatory lion.

We should have an adverse outcome insurance mechanism. Patients should be required to buy such insurance before a procedure. That way, the level of payment would be related, in a free market way, to level of premiums instead of being related to the theatrics of lawyers and whims of juries.

I would hope that reporters follow up on this story a year or so from now to see hope much Ms. Freeman recovers.

7 Eric T 05.05.09 at 9:32 am

This case looks more like adverse outcome than malpractice in the common sense meaning of the term.

Actually, it doesn’t look like that at all from the article. It looks like a secretary/receptionist failing to alert a medical professional about post-operative complaints. (I assume the exact nature of what was complained of was in dispute, since the one with the best knowledge about it is brain-damaged.)

There is a huge difference between a bad outcome and the failure to recognize that a bad outcome has occurred. Bad outcomes don’t mean malpractice. But failing to recognize that bad outcome and act on it might well be.

[Dr. Goodman] certainly wasn’t a predatory lion.

Being a bad person is not an element of negligence is any state that I know of. Whether he is predatory or not has utterly no relevance to the issue of negligence, proximate cause or damages.

8 Ted Frank 05.05.09 at 2:27 pm

There is no reason to perform a cancer screening colonoscopy in an otherwise healthy individual, before they turn 50, with no familial history of colon cancer.

I would agree. It would certainly be ironic if fear of being blamed of failing to diagnose a rare cancer for a 30-year-old complaining of GI trouble who has no other risk factors for cancer led to a defensive endoscopy that led to this adverse result. But plaintiffs’ lawyers tell us there is no downside to defensive medicine, which never happens anyway. (Of course, we don’t know from the news story what Freeman’s risk factors were, or whether her GI problems actually legitimately merited an endoscopy.)

They also include the physician improperly delegating post-op care to an office clerk rather than to an RN where patient calls the number the physician gave her if she experiences abnormal pain, and an office clerk tells her not to worry becasue it’s probably gas.

It looks like a secretary/receptionist failing to alert a medical professional about post-operative complaints.

The article implies that Dr. Goodman spoke to Freeman both times she contacted his office.

Diagnosing over the telephone is also improper. An in-person examination by a physician is needed if the patient complains of abnormal pain.

Therein lies the rub: “abnormal.”

9 Paul 05.05.09 at 3:49 pm

“Being a bad person is not an element of negligence”

And negligence isn’t an element of malpractice. The physician is responsible for treating a patient in accord with the professionally accepted standards of care. Now, presumably, this includes not making grossly negligent errors, but it’s not enough just to say that he was negligent, which implicates a different standard. The law establishes a standard for medical malpractice, yet it often allows verdicts against physicians on a much lower standard. We give businessmen the squander away billions of dollars the protection of a nearly impenetrable standard of care, yet expect physicians never to make mistakes and maintain almost beyond-reasonable standards of conduct. That’s backwards, and not the law.

Even if the physician did not talk to the patient, since when is respondeat superior applicable in malpractice? If the office assistant gave improper advice to a patient, sue her.

10 Eric T 05.07.09 at 10:04 am

And negligence isn’t an element of malpractice.

Yes, it is. The definition of medical malpractice is a departure from customary and usual medical practice.

The physician is responsible for treating a patient in accord with the professionally accepted standards of care. Now, presumably, this includes not making grossly negligent errors, but it’s not enough just to say that he was negligent

One need not prove “gross” negligence (at least in NY, where I practice). The standard is negligence, without any qualifier that raises the standard.

The law establishes a standard for medical malpractice, yet it often allows verdicts against physicians on a much lower standard.

The standard is a departure from accepted medical practices. A court can not permit a lower standard.

…yet expect physicians never to make mistakes and maintain almost beyond-reasonable standards of conduct.

No, the standard is relative to what the reasonable physician would do under those circumstances. It is not something that is “beyond reasonable.” It would be judicial error to charge a jury in that fashion.

Even if the physician did not talk to the patient, since when is respondeat superior applicable in malpractice?

All the time, though sometimes there is a hazy line between simple negligence and malpractice. (For example, it might be malpractice for a doctor not to order the bed rails up for a certain patient, but negligence if the order was not followed by the staff.) But in either case, if an employee is the one that screws up then the employer is responsible. It is up to the employer to make sure his/her staff is trained for the job and not to hire inexperienced or incompetent help.

11 James "Bubba" Parker 05.21.09 at 4:04 pm

Sadly, the article is not complete, and you based your argument off of such without doing further research on the matter. I grew up with Kristen, am a loving friend, and although I am certainly biased (especially in this case), I can assure you that Kristen did everything she was suppose to do, especially in her condition and given instructions. It is possible she still would have had some form of disability, and potential brain damage, even if she went to the hospital immediately (which she was NOT directed to do). Finding her 49% liable is simply insane.

Many doctors are in a rushed position to get the patient in/out. Procedures are followed, yet so robotically in nature, yet we find mistakes continue to plague the industry. Gone are the days of physicians who actually devote time and care to their patients. I don’t blame the docs for this, but rather the system we have to live with. We all know this, so why are we arguing this point.

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