When is it better to settle a case, and when is it better to go to trial? In most situations, cases are dismissed or withdrawn long before they ever approach the trial stage. But when a case proceeds to the point of going to trial, a choice will have to be made. This month’s case looks at what goes into that decision.
Dr. W, 58, was a general practitioner in her own practice. She had been running a small office in the Chinatown neighborhood of a large city. Dr. W was herself Chinese, and bilingual, and her patients were primarily Chinese as well. Many of them were older patients whose English was not good and so they appreciated going to a physician who they could communicate with. Dr. W employed a bilingual receptionist and nurse to help in the office as well.
The physician had been in practice at the same location for close to two decades, and many of her patients had been with her since the beginning. One of these patients was Mrs. C, 70. The patient had been seeing Dr. W for over 15 years, and the physician knew her well. Mrs. C was healthy for her age and mostly came in for regular check-ups and minor complaints such as seasonal allergies or bronchitis. However, over the past year she had developed rheumatoid arthritis which was now affecting her daily activities.
During her most recent appointment, Mrs. C complained to Dr. W about the problem.
“My hands,” the patient told the physician “don’t work the way they should anymore. They’re stiff, they hurt.” Cooking, in particular, was becoming more and more difficult. Her lifelong hobby of gardening had become painful and unpleasant.
“I understand,” Dr. W told the patient in Chinese. “I will prescribe some medicine to help the arthritis. While she was writing and talking to the patient, however, something happened which had never happened to Dr. W in her years of practice – she made a prescribing error. Instead of writing the order for 5mg of prednisone per day as she intended to, she wrote it for 500mg – a 100 times overdose.
The mistake was not caught, and the patient began taking the medication. Dr. W was not aware of the error until she heard that her patient was in the hospital after having suffered a spine and rib fracture after falling at home. It was discovered that the patient’s bone density was low, and the abnormally high prednisone dose was targeted as the cause. However, by the time it was discovered, Mrs. C had compression fractures of the pelvis, spine and ribs, and had become housebound due to her fear of fracturing more bones.
Mrs. C’s daughter urged her to see a plaintiff’s attorney and to sue Dr. W for malpractice. Mrs. C, who’d had a positive relationship with the physician for many years was reluctant but the attorney and her daughter convinced her that suing the physician was appropriate.
Dr. W was horrified when she discovered her error. To her knowledge, she had never made a prescribing error before and she had always taken pride in her accuracy and her good relationship with her patients. To find out she was being sued by one of her longest-term patients was disheartening, but she understood.
The physician met with her defense attorney to discuss the case. “I’d like to settle,” said Dr. W, almost immediately. “I made an error. I feel terrible about it, but I have no justification for it. I think I was distracted by talking to the patient at the same time as I was writing the prescription.”
“Hold on now,” said the attorney. “We may settle eventually, but there’s no reason to do so right now. Yes, you made an error, but they have to prove that the error caused the patient’s fractures. If they can’t prove that, we don’t have to pay anything.” Since the attorney was provided by Dr. W’s malpractice insurance company, she was obliged to go with his suggestions, although she would have preferred to just settle immediately.
During the discovery process, medical experts were deposed and evidence was gathered. After reviewing all the evidence, the defense attorney met with Dr. W again. She reiterated her desire to settle. The attorney felt that they would have a chance at trial. “Your patient is Chinese,” said the attorney. “The experts have testified that Asian people are more likely to develop osteoporosis in general. They would have to prove that the fractures were caused by the prednisone and not by naturally-occurring osteoporosis. The patient hadn’t had a bone density scan before she was prescribed the prednisone, correct? So perhaps she already had osteoporosis.” The attorney looked at the expression on Dr. W’s face and added “we could have a settlement discussion prior to scheduling trial, if you’d like.”
Dr. W didn’t want to go to trial. Luckily, neither did her former patient, Mrs. C. At a settlement conference prior to setting a trial date, a confidential settlement was worked out. Dr. W felt greatly relieved at not having to go to trial, and the patient (and her daughter) felt that the physician had taken responsibility by offering a settlement.
One of the required elements of a medical malpractice case is causation. The plaintiff must be able to prove that the breach of a provider’s duty to the patient was the cause of the patient’s injury. It’s not enough that there was simply an error, or that there was an injury. The error has to be the actual cause of the injury.
Dr. W’s attorney was playing the odds, as many attorneys do. Sometimes allowing a case to proceed through discovery will uncover information helpful to one side or the other and will make settlement more obvious or appealing (or the opposite).
Dr. W had never made a prescribing error in her many years of practice until the day that she did. Errors can happen to anyone. Your best bets for minimizing errors are1:
- Double check medication orders after they are written.
- Minimize distractions when writing prescriptions.
- Tell patients what medications are being prescribed and at what dose. Repeating it is helpful and will enable patients to have more control of their own healthcare.
- Try to get enough rest and take breaks during the day if possible.
Remember – even the best clinician can make an error, especially after a long day or when distracted.
1. Side Tracks on the Safety Express. Interruptions Lead to Errors And Unfinished… Wait What Was I Doing? Institute for Safe Medication Practices. Nov. 29, 2012. Accessed 9/13/2016.