Legal Articles, Accident & Injury

ER Supervisory Physician Could Owe a Duty to a Patient Never Personally Examined In a recent Illinois Appellate Court decision, a dismissal of a doctor from a medical negligence lawsuit was reversed as the issue is a factual one to be determined by a jury and there exists a genuine issue of material facts in the case. A patient was taken to a hospital emergency room complaining of a sore throat and difficulty breathing. A nurse practitioner (NP) examined the patient and diagnosed her. The NP prescribed Clindamycin for the symptoms and recommended the patient be discharged from the emergency room with instructions to follow up with her primary care physician. The NP documented this information in the medical chart. The Supervising Emergency Room Physician (SERP), who worked for a separate physician’s group that contracted with the hospital, reviewed the medical chart, including history of present illness, review of systems, physical examination, lab orders, and results. Based on the chart, the SERP opined that the medical care was “reasonably appropriate,” no further medical tests or imaging studies were required, and the discharge plan was appropriate. The SERP included an addendum to the medical chart stating, “I was the supervising physician for this patient and agree w/ plan.” The hospital discharged the patient at 2:45 a.m. At 4 a.m., the patient called 911 but she could not speak. The dispatcher sent the paramedics to her home. The paramedics found her unresponsively lying in her driveway and administered oxygen. An ambulance took her to a hospital where emergency measures restarted her heart, but she died on December 13, 2016 After a lawsuit was filed, the trial court by way of summary judgment, dismissed the Supervising Emergency Room Physician and the physician’s group, concluding, the SERP never had a physician-patient relationship which is a requirement for medical negligence liability. The trial court determined that there was no genuine issue of material fact as to that matter. The Appellate Court in a unanimous decision, reversed the decision. The Court determined that the SERP was employed by an independent physician’s group, retained by the hospital to staff the hospital’s emergency room with physicians, mid-level nurse practitioners, and physician assistants. Generally, the mid-level practitioners and physicians see patients independently. However, the physician’s group assigns physicians to work with mid-level practitioners. According to the SERP, the physician’s role is to respond to the mid-level practitioner’s request for assistance: “I’m there to provide any help if she needs it—he or she, whoever the mid-level would be. If they want me to come see the patient, examine the patient, talk to the patient, and help them make a disposition on the patient, I’m there to do that.” Due to billing purposes, a patient cannot be discharged unless the supervising physician approves it. The Appellate Court concluded that “the extent of the Supervising Emergency Room Physician’s responsibility and involvement in reviewing of the patient’s medical chart and approving her care and treatment demonstrates that, the SERP’s medical evaluation impacted the patient’s diagnosis and treatment. Therefore, we find that a genuine issue of material fact exists as to whether the Supervising Emergency Room Physician owed a duty of care to the [patient] and the circuit court erred by granting the motion for summary judgment in favor of the physician. By Hon. James M. McGing (ret.), Miller McGing Law (773) 467-8000. Call Today.

Birth Injuries/Defects and Medical Negligence By Hon. James M. McGing (ret.) According to the National Institute of Health (NIH), the National Vital Statistics Report defines birth injury as "an impairment of the neonate's body function or structure due to an adverse event that occurred at birth." These injuries include a wide range of minor to major injuries due to various mechanical forces during labor and delivery. Birth injuries are different from birth defects or malformations and are often easily distinguishable from congenital defects by a focused clinical assessment. The risk factors associated with birth trauma can be grouped into those related to the fetus, pregnancy, mother, or iatrogenic factors (use of instrumentation during delivery) according to the NIH. The injuries can include head trauma, hemorrhages, skull fractures, nerve and spinal injuries, just to name a few. These injuries can be the result of medical negligence for a variety of reasons including misuse of medical tools and devices and failure to monitor the mother and baby before, during and after delivery, and can cause permanent injuries to a newborn or a mother. Birth defects on the other hand, occur during pregnancy, especially in the early stages. Although, many are often unavoidable, there are many situations where a birth defect is avoidable. One example is when a medication causes a birth defect, a doctor can be found negligent for prescribing the medication if they knew the risks and a drug manufacturer may also be held liable. Many genetic disorders or defects are treatable during pregnancy (in utero). If a treating physician does not properly diagnose a treatable condition, that failure to diagnose can be considered medical negligence. An Obstetrician (OB) or an OB-GYN, a physician qualified in Obstetrics and Gynecology is the physician in charge of care during pre-conception, pregnancy, childbirth, and immediately after delivery. These doctors review medical information including charts, lab tests, in-office examinations, risk factors and ultrasounds and make decisions accordingly. A birth defect can result if a crucial bit of information is missed by them with catastrophic injuries or even death. According to the NIH, some medications are associated with known birth defects while other defects can be caused by failure to assess, recognize certain risks and take action during situations such as when a baby is too large for the birth canal, a drop in heart rate or an umbilical cord impeding the baby. Doctors must recognize these and other risk factors and take the appropriate steps in accordance with the recognized medical standard of care. When they don’t, they can be held liable. Hon. James M. McGing (ret.) Former Supervising Judge, Law Division Miller McGing Law (773) 467-8000

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