Case 1.

The Arizona case of Murphy v. Board of Medical Examiners¹ involves an insurance company Medical Director who made a “medical decision” that overruled the surgeon’s recommendation to perform a cholecystectomy, thereby denying precertification for treatment. On December 29, 1992, Dr. M contradicted the advice of the patient’s surgeon and her referring physician by refusing to precertify a patient’s laparoscopic cholecystectomy; he stated that the surgery was “not medically necessary.”

Despite the refusal to precertify, the surgery was performed by the patient’s surgeon. Following the cholecystectomy, the surgeon registered a complaint against Dr. M with the Board of Medical Examiners. In February 1993, the Board sent Dr. M a copy of the surgeon’s complaint and requested a response. Dr. M responded by questioning whether the Board of Medical Examiners could review his action because he was “not involved in patient care and not involved in the practice of medicine.” Dr. M provided the requested information “as a courtesy” and to avoid “a claim of unprofessional conduct.” In October 1993, the Board ordered an investigation and subpoenaed the insurance company documents concerning 20 cases in which the company’s Medical Director, Dr. M, denied precertification. The insurance company objected to the subpoena and said that the Board lacked jurisdiction because Dr. M worked for an insurance company and he was not practicing medicine. The case was appealed.

The Appellate Court ruled that although Dr. M was not engaged in the traditional practice of medicine, to the extent that he rendered medical decisions his conduct was reviewable by the Board of Medical Examiners. The Appellate Court found that Dr. M substituted his medical judgment for that of the patient’s surgeon and determined that the surgery was “not medically necessary.” The court ruled that such decisions were not insurance decisions but, rather, medical (surgical) decisions because they required Dr. M to determine whether the procedure was “appropriate for the symptoms and diagnosis of the condition,” whether it was to be “provided for the diagnosis, care or treatment,” and whether it was “in accordance with standards of good medical practice in Arizona.”

Case 2.

The Louisiana case of Fusilier v. Dauterive² involved a laparoscopic cholecystectomy. In 1989, plaintiff F was diagnosed by an abdominal ultrasound test to have a gallstone in her gallbladder. She elected not to have a cholecystectomy at that time. On May 8, 1990, plaintiff F visited for the first time Dr. D, a general surgeon, complaining of nausea, indigestion, epigastric discomfort, and fatty food intolerance. Repeat abdominal ultrasound confirmed the diagnosis of cholelithiasis. Dr. D initially treated the patient conservatively, by observation and symptomatic treatment. However, the plaintiff’s symptoms became more severe, and Dr. D discussed treatment alternatives and recommended surgery. Meantime, plaintiff F’s surgery was delayed because she developed congestive heart failure, which was treated by her family physician and improved.

On November 9, 1990, she was admitted to the IG Hospital to undergo a laparoscopic cholecystectomy. Dr. D performed the cholecystectomy, during which time he was observed by Dr. R, a gynecologist, who was familiar with the use of the trocar, needle, and other instruments used in laparoscopy. Dr. F did not participate in the actual performance of the surgery. The gallbladder was successfully removed.

Following the completion of the laparoscopic cholecystectomy, the anesthesiologist noticed blood coming from the patient’s mouth. Laparotomy revealed perforations of the duodenum, mesentery, and aorta. While attempting to repair the perforations, the surgeon punctured the plaintiff’s intestine and her splenic capsule, which necessitated a colostomy.

The plaintiff incurred a tremendous blood loss, causing severe hypotension on several occasions during the operation. To stabilize the plaintiff’s condition, the medical staff administered 38 units of blood, 9 units of plasma, and 8 liters of Plasmalite. Eventually the bleeding was controlled, but the patient was still hypotensive. Her abdomen was then closed, and she was taken first to the recovery room in critical condition, then to the Intensive Care Unit.

The postoperative course was complicated with recurrence of congestive heart failure; the development of adult respiratory distress syndrome, which required extended ventilatory support; continued blood loss over the first weeks of her recovery, requiring intermittent blood transfusions; the performance of a tracheostomy after several failed attempts to wean the plaintiff from the ventilator; and insertion of a PEG feeding tube to facilitate nutritional intake.

On December 24, 1990, plaintiff F was discharged from the hospital. Five days later she was readmitted to the hospital with sepsis, internal herniation with infarction of the ileum, and significant adhesions in her abdomen. She underwent an abdominal exploration, relief of the abdominal adhesions, a small bowel resection, a right hemicolectomy, and an excision of her colostomy.

On January 18, 1991, she was admitted to a skilled nursing facility, where she remained until February 14, 1991.

Medical Review Panel. Following surgery, the plaintiff F discovered that the surgeon had never performed a laparoscopic cholecystectomy on a human prior to the one he performed on her, and that the only training Dr. D had received concerning the procedure was during a two-day course entitled “Surgical Laser in Laparoscopic Cholecystectomy” in May 1990. The course consisted of one day of lectures and one day of participation in handling the instruments to remove the gallbladder of a pig.

The plaintiff filed a claim with the Medical Review Panel on October 25, 1991. On August 6, 1992, the panel concluded that the plaintiff had not proven that Doctors D and F and the IG Hospital deviated from the standard of care that is required of physicians, health care providers, their staff and/or employees of the same specialty. The panel specifically concluded that:

On November 6, 1992, the plaintiff filed a petition in District Court for damages, naming Dr. D, Dr. F, and IG Hospital as defendants. The petition alleged inter alia that the defendants deviated from the accepted standards of medical practice for health care providers and caused injuries and damages to the named plaintiff. The plaintiff specifically asserted that the defendants:

The jury verdict, which was in favor of the defendant surgeons and hospital, was affirmed by the court of appeal. However, the Supreme Court of Louisiana granted a writ of certiorari (i.e., accepted to review the case) to determine whether the jury’s determination that the defendant surgeon was not negligent in performing the surgery and that his negligence was not a cause of plaintiff’s injuries was erroneous. The Louisiana Supreme Court held that the jury’s determination was manifestly erroneous in finding that the defendant did not fail to inform the plaintiff of material risks to the surgery. And after reviewing all of the evidence and testimony, the court held that the jury was manifestly erroneous in concluding that Dr. D was not negligent. Accordingly, the Louisiana Supreme Court reversed the court of appeal’s decision to affirm the jury’s verdict and remanded this matter to the court of appeal to assess damages. In essence, the Supreme Court in a nice way informed the trial judge that he or she should have ruled as a matter of law that Dr. D was negligent, and that the jury’s role should have been to assess damages only.