Miscellaneous Torts

CHAPTER 16 Miscellaneous Torts



Melvin L. Butler, M.D., J.D., F.C.L.M.




GOLDEN RULES



1. Before running the mouth, make sure the mind is engaged.

2. Many malpractice suits stem from failure to diagnose in a timely manner. The physician must ensure that his or her practice has processes in place to prevent lab, x-ray, or other results from “falling through the cracks.” One way to avoid such errors is to build in redundancy in the systems that are in place in the practitioner’s office.

3. Be very careful when speaking with patients regarding the success of any proposed therapy. A good rule is to avoid the use of the words “never” and “always” when describing side effects or the success of medical or surgical therapy.

4. As in so much of medical practice, common sense and basic decency can go a long way in protecting the physician against lawsuits.

The purpose of this chapter is to present sample cases and discuss the following torts: abandonment of patients, sexual exploitation, assault and battery, defamation and libel, invasion of privacy, violation of civil rights, and fraud and misrepresentation.



ABANDONMENT OF PATIENTS




CASE PRESENTATION


Dr. W., a hard-working family physician, has a large practice. He has a few patients who complain of back and leg pain and who seem to require large amounts of narcotic medications. Recently he has been notified by a local pharmacy that one of his patients has presented a prescription for hydrocodone and the pharmacist found that she had filled a similar prescription, written by another physician, for 90 tablets just a week earlier.


Dr. W. is upset and angry with the patient. He tells the pharmacy not to fill the prescription he wrote and to advise the patient to return to see him in his office. The patient comes to the doctor’s office the following day wanting another prescription for hydrocodone. Dr. W. confronts her with the information the pharmacist has given him and tells the patient that he will no longer serve as her physician. Despite the patient’s requests that she be allowed to continue seeing him, Dr. W. says that he will not allow it and that he will send her a letter stating this. He also told her that he would list some names of clinics or physicians that might be willing to take her as a patient.


Dr. W. does dictate a letter informing the patient that she has been terminated from his practice and gives her the names of some local clinics that she can call to see if they will give her an appointment. He says that the termination is effective immediately. The letter was sent to her by certified mail. The patient develops abdominal pain and fever three days after receiving the letter of termination. She calls Dr. W.’s office for an appointment but is told that she cannot be seen. No one in his office advised the patient to go to the emergency room if her symptoms continue. Despite calling the other clinics Dr. W. provided, none can give her an appointment for two weeks. Another day passes and the patient is taken by ambulance to a local hospital where she is found to have acute pancreatitis. She subsequently dies in the hospital.



Issues


If a doctor decides that he can no longer treat a patient, he is obligated to notify the patient. In addition, he should provide suitable alternatives for the patient to obtain care in the local area. If he should fail to allow enough time for the patient to find another physician, he may be guilty of express abandonment. The length of time to allow for a patient to establish care with another physician is not set in stone. In general, giving the patient at least three to four weeks would probably be considered reasonable.



Survival Strategies


Dr. W. made a significant error in terminating his patient’s care “immediately.” At the very least he should have given her three to four weeks to estab- lish care with another physician or clinic. Failing that, he should have allowed for any emergent condition that might necessitate prompt care, regardless of his termination letter. Earlier admission to the hospital might have been life-saving in this situation. The law does not require that a subsequent treating physician be in place at the time of termination. “The standard is one of reasonableness, and an action for abandonment will not generally be upheld when sufficient grounds for termination exist, along with reasonable efforts on the part of the physician to find alternative care.”



SEXUAL EXPLOITATION




CASE PRESENTATION


Dr. M., a prominent psychiatrist in his mid-fifties, was treating a young woman in her twenties for a bipolar disorder. During the course of treatment, which consisted of drug therapy as well as some psychotherapy, the woman developed a strong dependence and attraction for the physician. In fact, on several occasions she had told him that he reminded her of her father who had died when she was in her teens. The woman said that she had loved her father deeply and still grieved for him at times.


In the fourth month of therapy Dr. M. asked the patient if she would consider having dinner with him one evening. This she did willingly and over the course of another month the physician had sexual intercourse with the patient on several occasions. When she was doing well from a mental health standpoint the psychiatrist advised her that she did not need to continue seeing him so frequently. The patient took this as rejection by the psychiatrist and in time retained an attorney and sued him for malpractice.



Issues


Courts nowadays consistently hold that a physician, particularly a psychiatrist, who has a sexual relationship with a current patient, has performed an unethical, improper act. All states recognize this to be the basis for at least a civil action.


The fact that many patients develop strong feelings toward their therapist makes them very vulnerable to abuse by an unethical therapist. No matter if the patient freely “consents” to sexual intercourse, the cases have clearly indicated that the consent of such a patient is invalid.



Survival Strategies


Dr. M’s attorney might invoke the standard defense to sexual exploitation, that is, the patient consented. In Benavidez v. United States, the court held that consent in the therapeutic context is essentially irrelevant and such conduct has traditionally been defined in terms of negligence. Of note, most professional liability carriers routinely refuse to cover cases involving sexual exploitation.



ASSAULT AND BATTERY




CASE PRESENTATION


A surgeon, Dr. S., had just finished a difficult cholecystectomy in which several minor complications prolonged the operation. Outside the operating room, in the hospital corridor, a scrub nurse made a comment to another nurse that Dr. S. had “made some errors” that caused the operation to last longer than it should have. The surgeon, overhearing this, walked up to the two women and, shaking his finger in the nurse’s face, yelled at the nurse, “You’d better not spread that kind of (expletive deleted) about me or I will personally take care of your loud mouth.” He then stormed out of the area. The nurse, after discussing the incident with the director of nursing at the hospital, filed an assault charge against Dr. S.

Related posts:

  1. Professional Liability Insurance
  2. Medical Malpractice Stress Syndrome
  3. Improper Disclosure of Confidential Information
  4. Neonatology and Pediatrics

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Mar 25, 2017 | Posted by in GENERAL & FAMILY MEDICINE | Comments Off on Miscellaneous Torts

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