Your Practice Made Perfect
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Oct. 26, 2018
Episode 039: From Witness to Defendant
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"Successful Defense of Surgical Judgment” by Dan Himmelberg
Speaker 1: You are listening to Your Practice Made Perfect, support, protection and advice for practicing medical professionals, brought to you by SVMIC.
Brian: Hello, and thanks for joining us on our podcast today. We're going to take a look back at a closed claim here at SVMIC and discuss the case itself and what happened and get into some of the facts of the case. Joining us to do that is attorney Dan Himmelberg. Dan, welcome.
Dan: Hi, Brian.
Brian: Well, before I even get into the story really... Dan, you've been here at SVMIC for a while. Tell us a little bit about yourself.
Dan: Sure. I have been here for almost 18 years now. I'm currently Assistant Vice President in claims. I've worked, of course, starting out as a claims attorney, then as a senior claims attorney, and now I'm Assistant Vice President, like I said, so I'm supervising some files and handling others.
Brian: Well, this is going to be an interesting case, but I think in order for our listeners to appreciate our discussion at the end, we really need to go through the case. I'm going to read a brief story here about what we're talking about.
Mr. Gamgee was a 70-year-old male, who was a smoker and slightly overweight. He had a history of back pain and of skin cancer removed 20 years before. His hypertension had been treated over many years, with various medications, but was not well controlled. He presented to the emergency department early Thursday evening with right lower quadrant abdominal pain, which he reported as a 10 out of 10 on the pain scale, stating he had been experiencing this pain for a day.
Mr. Gamgee complained of nausea, vomiting and insomnia the night before. He had a blood pressure of 174 over 89, temperature of 98.9, pulse of 64, and his respiration rate was 20. CBC test result showed his white blood cell count slightly elevated at 13.5. A blood calcified aortic shadow suggesting an infrarenal aortic aneurysm, which warranted follow-up evaluation. Mr. Gamgee was admitted for surgical evaluation.
Morphine helped the patient's pain and a CT scan was performed. The surgeon, Dr. White, reviewed the CT imaging himself and identified a large aortic aneurysm below the renal artery, but saw no evidence of leakage of blood from the aneurysm. A radiology report the next day agreed with this interpretation. Dr. White interpreted the CT imaging as not confirming an abnormality of the appendix, but not ruling it out either.
The later radiology report did not mention the appendix. When Dr. White evaluated Mr. Gamgee, his right lower quadrant was very tender at McBurney's point. There was little abdominal distension. He was able to palpate the aneurysm, and the patient did not report tenderness. Mr. Gamgee was not tachycardic.
Dr. White recognized the surgical dilemma here. The clinical symptoms were strongly suggestive of appendicitis, but the CT imaging did not show appendicitis. The CT imaging was thought to be up to 95% accurate in diagnosing appendicitis. Alternatively, the symptoms were not typical, but Dr. White could not rule out that the aneurysm was causing them. Additionally, the patient was at increased surgical risk due to high blood pressure and kidney concerns.
Dr. White decided the best course was to perform a diagnostic laparoscopy, then let his findings guide the surgical course. If it showed any evidence of blood tinged fluid, then he would proceed with an emergency repair of the aneurysm. If it did not, then he would evaluate the appendix and otherwise try to optimize the patient for later surgical repair of the aneurysm. Mrs. Gamgee signed the surgical consent for her husband.
In the surgery, Dr. White saw no evidence of leakage from the aneurysm. He described the appendix as appearing 'a little inflamed'. Because it did not appear completely normal and Mr. Gamgee had strong clinical symptoms, Dr. White removed the appendix. After surgery, Mr. Gamgee was admitted to the ICU to try to improve his blood pressure and kidney function.
Dr. White's plan was for an arteriogram to take place the following Monday to further assess the aneurysm. The next day, Friday, cardiologist assessed the patient as high risk for further surgery and recommended proceeding with caution. Mr. Gamgee was in no distress and no longer had nausea or vomiting.
Dr. White briefed his partner, Dr. Brandibuck, who was covering for him over the weekend. Mr. Gamgee appeared to improve on Saturday, and Dr. Brandibuck and a radiologist reviewed the CT scan from Friday and agreed that it did not show any signs of leakage from the aneurysm. A preliminary pathology report stated the appendix appeared to be normal. Mr. Gamgee appeared stable and improved throughout the day on Sunday.
At 10:40 on Sunday evening, he complained of some right flank pain. At 10:43, Mr. Gamgee complained of intense, sharp back pain. His eyes rolled back, and he arrested. Resuscitation efforts were not successful, and Mr. Gamgee was pronounced dead at 11:05. The record of death noted the immediate cause of death as cardiopulmonary arrest, and did not reference a ruptured aneurysm.
No autopsy was conducted. Dr. White prepared the death certificate and listed 'ruptured abdominal aneurysm' as the cause of death. 10 months after the death, Mrs. Gamgee filed suit against Dr. White.
Dan, this was a fairly complicated case it sounds like, with quite a bit going on. What was the chief complaint or argument behind Mrs. Gamgee's lawsuit here?
Dan: The plaintiff's experts focused mostly that Dr. White should have ruled out an appendicitis. They stated that the CT results showed no problems with the appendix, and given Mr. Gamgee's pain complaint of 10 out of 10, it should have showed clear concerns if the appendix was the cause.
They were bolstered since, in hindsight, the appendix was not infected. Those experts testified that the aneurysm was a true concern that should have been dealt with urgently. They conceited that the patient's blood pressure and kidney function needed to be dealt with, but they said this could have been done within a day.
They noted how well the patient was doing the day after the appendectomy. They opined that the aneurysm could have been dealt with that day, if Dr. White had not imprudently performed the appendectomy. If the aneurysm had been treated, either by stinting or with a bypass, then the rupture and death could have been avoided.
Brian: Sounds like it was definitely complicated. What was the outcome of this case, Dan?
Dan: Well, the case proceeded against Dr. White for a little over, actually, eight years.
Dan: That involved a dismissal during the interim. A plaintiff can nonsuit a case and refile the case within one year in this jurisdiction, and that happened during the course of this.
Dr. White defended his care and had supportive experts, ultimately. His surgical decision making was outlined in the records, but required his strong testimony in his deposition and at trial to fully explain his actions. Dr. White defended his care and had supportive experts in the litigation. His surgical decision making was outlined in the records, but required his strong testimony in his deposition and at trial to fully explain his actions.
Although Dr. White had served as a testifying expert in the defense of other surgeons, he worked with a witness preparation consultant prior to his trial testimony. He had to understand that explaining his care as a defendant required a different mindset and perspective than he had as an expert. He had to show his care and concern for Mr. Gamgee as much as his actual surgical expertise and decision making based on the information he had at the time.
Fortunately, the jury found that Dr. White used reasonable surgical judgment and returned a defense verdict on his behalf. The court entered a judgment for Dr. White and dismissed the case.
Brian: Dan, what could Dr. White have added to his documentation that possibly could have helped avoid this lawsuit at all, to not have to go through this process, or at least better help the defense itself?
Dan: Sure. I don't know if anything he could have added would have really stopped the lawsuit itself. Certainly there are some points that he could have added that would have been helpful to his defense, and maybe would have short circuited what the experts later had to say.
Dan: A lot of the care during Mr. Gamgee's admission was by a surgical resident, so Dr. White was involved, but the resident was making a lot of the notes.
Dan: Dr. White did not make his own separate progress notes at times, so it was unclear when he was directly involved in evaluating the patient. If he had made either brief notes, just commenting on the resident's evaluation or things along those lines, it would have created a better timeline to show when he was specifically involved.
Brian: So, yeah. There's certainly some documentation issues there that maybe could have helped certainly in the defense. So, Dan, in the story, we heard about a Dr. Brandibuck that is Dr. White's partner involved in this case. What was his involvement in the lawsuit, and was the court ruling favorable to him as well?
Dan: Dr. Brandibuck was named, and he spent five years in the litigation defending his care. The plaintiff dismissed him to simplify her claims and focus the case against Dr. White. Dr. White was in the litigation for over eight years from the time of initial filing until the jury heard the case and found in his favor. The plaintiff did not appeal the verdict and judgment, so the case did not last even longer.
Brian: To that point, we've been talking about five years and eight years. These seem to go on for quite a period of time. Is that common in medical professional lawsuits, or medical malpractice suits, that they tend to go over a long period of time?
Dan: They definitely go over a long period of time, Brian. Now, this was probably an outlier, on the outside edge of what we might expect.
Dan: But, it's certainly not atypical.
Brian: So, these are certainly not the kind of cases that you're going to get filed, notified, and it's going to wrap up within a few months. You're looking at a long period of time.
Dan: Correct. Unless there's just some technical problem with the plaintiff's initial filing that the defense can get a quick dismissal, if it has to go through the merits of the case, it's going to last for a few years at least.
Brian: Wow. Is it fortunate that the court entered a judgment for Dr. White and dismissed this lawsuit? There seemed to be some strong participation on Dr. White's end. What would you say Dr. White did that really contributed so strongly to this positive outcome? He was obviously very involved in this process.
Dan: Sure. Well, he was fortunate certainly to get a defense verdict. It certainly appeared that that was the appropriate outcome from the beginning of it, and Dr. White stood strong on his own care and carried this all the way through to trial and his ultimate judgment.
Some of the things that he did that really helped the process from the defense standpoint was he spent a lot of time with his defense counsel, preparing for his deposition, reviewing the criticisms of the plaintiff's experts, and later helping develop a consistent defense theme incorporating the testimony of his supporting experts.
As I mentioned previously, Dr. White had actually served as a testifying expert witness for a number of other surgeons in the past, and he was well acquainted with testifying in that role. Explaining his care as the defendant surgeon required a different mindset and perspective. He had to show his care and concern for Mr. Gamgee as much as his actual surgical expertise and decision making.
Dr. White took the extra step of working with the witness consultant prior to giving trial testimony. She helped him understand that the jury would want to hear from him as the actual caregiver. The jury would want to see him as credible, competent and caring, and not arrogant and authoritative. He did a fantastic job testifying to the jury.
Brian: It is interesting that Dr. White obviously knew this process, having served as an expert witness in the past, and had to change his mindset to help his own situation here. And you talk about that consultant, that witness consultant. That's really interesting, because hopefully that person could come in help him understand that different role. What exactly is a witness consultant, and what is their purpose? What do they do in these types of cases?
Dan: A witness consultant works with the defense team. The defense attorney retains them to come in and help the defendant doctor, usually, with understanding their role in the case, such as with this situation with Dr. White. They will come in and work anywhere from one or two days. They may go into the technical details of the case, or it may be something that's more along the lines of helping them understand what a jury wants to hear from them so they can fulfill their role as the fact finders in the case.
Brian: Do you often use these witness consultants? Are they pretty much used on all cases or is it kind of a situation by situation type tool that you use?
Dan: It's a situation by situation type tool. They certainly aren't used in every case, but we have them available and will use them when we see the time is right.
Brian: There's obviously, like in this scenario, great value there that can be used in a case and the ability of SVMIC to have already pinpointed some of these experts that can come in and help them with that consulting certainly favors the doctor, correct?
Dan: Certainly. Our role in part as the claims attorneys, claims handlers working on the case, is to evaluate when that might be necessary, even recommend that to defense counsel when they might not think of going this route.
Brian: So, as we get ready to wrap up here, Dan, what would you say is maybe just one, two bullet points out of this that you could really look back at and go, for other physicians or people listening out there, that were really critical in this case, that help with this outcome in the end and saved Dr. White a situation of being negligent here?
Dan: I think one big point is simply, if you do have a lawsuit, is paying attention to your defense counsel, being responsive and making yourself available to do the things that they're requesting for you to help in your own defense.
Another thing is, as we talked about with the documentation, documenting when you see the patient, just at least a brief note noting that you were there so it's actually known that you were in the room.
Dan: One thing with the documentation that we didn't talk about specifically was that... We talked about Dr. White handing the case off to Dr. Brandibuck. That communication was not very well documented in the chart. It was documented that it happened, but no specifics were given. That was another point that we see in cases all the time is that communication aspect and having some specifics about what was actually communicated between the physicians.
Brian: Well, this has been very informative and I really appreciate you being willing to take the time and come and discuss this case with us. Thanks for being here.
Dan: You're welcome.
Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host, Brian Fortenberry. Listen to more episodes, subscribe to the podcast, and find show notes at SVMIC.com/podcast. The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policy holders are urged to consult with their personal attorney for legal advice, and specific legal requirements may vary from state to state and change over time. All names in the case have been changed to protect privacy.
The contents of this Podcast are intended for educational/informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and/or change over time. All names have been changed to protect privacy.
About our Guest
Dan Himmelberg is an Assistant Vice President, Claims with SVMIC. Mr. Himmelberg graduated from the University of Missouri – Columbia with a BES degree with an emphasis in Chemistry and Natural Science. After working several years he furthered his education and obtained his JD from Vanderbilt University – School of Law. He then practiced with a defense law firm in Columbia, MO before joining the SVMIC claims department in 2000.
About our Host
Brian Fortenberry is Assistant Vice President of Underwriting at SVMIC where he assists in evaluating risk for the company and assisting policyholders with underwriting issues. He has been involved with medical professional liability insurance since 2007. Prior to his work at SVMIC, Brian worked in the clinical side of medicine and in broadcast media.