Malpractice Suits Must Connect All the Dots

To pursue a lawsuit for medical malpractice, it is not enough for a plaintiff to demonstrate that a defendant did not meet the standard of care in treating a patient and that a patient suffered a  harm. A crucial component must bridge the two — the professional breach must have caused the harm.

A new California case illustrates this dynamic by dissecting expert opinions submitted in a motion for summary judgment, a tool used by defendants to terminate a lawsuit without a full trial. The case, Fernandez v. Alexander, demonstrates why a judge considering a motion for summary judgment need not accept an expert’s conclusions if those opinions are not supported by reasoned explanations.

Subscribe to Patient Safety Advocate
Patient Safety Advocate is a free bi-monthly newsletter created by CAP's risk management and patient safety experts, specifically for the independent medical practice.

Plaintiff Victoria Fernandez fell and fractured her left wrist on November 14, 2014, had x-rays taken in the emergency room, and wore a splint  until she visited orthopedic surgeon Charles Alexander, MD, 10 days later. Dr. Alexander reviewed the ER x-rays and upon examining Ms. Fernandez, assessed her as having a left distal radius fracture and left ulnar styloid fracture. After a discussion (the extent of which was later disputed), Dr. Alexander recommended placing the wrist in a cast, which was done by his physician assistant.

When the PA removed the cast on December 8, the hand looked deformed. New x-rays showed “callous formation with dorsal angulation of the hand.” The PA put the patient in a freedom splint and prescribed physical therapy.

Ms. Fernandez visited Dr. Alexander’s office for the third time on January 23. With the hand’s status being suboptimal, Dr. Alexander instructed the patient to use alternating heat and ice and noted that, lacking improvement, an open reduction and fixation could be considered. The patient never returned to Dr. Alexander but instead underwent a bridge plate surgery by another physician.

In a subsequent lawsuit, Ms. Fernandez alleged Dr. Alexander and the PA “failed to inform or advise [her] that she could suffer and incur permanent left wrist injury including the dorsal angulation and ligament damage as a result of their treatment.”

Dr. Alexander’s attorney moved for summary judgment by submitting a declaration from orthopedic surgeon and hand specialist Charles Resnick, MD. In his written declaration, Dr. Resnick stated that the standard of care for the patient’s  injury permitted either the performance of surgery and/or casting, that the patient was properly advised of her treatment options, and that Dr. Alexander and the PA complied with the standard of care at all times.

Dr. Resnick’s declaration went to explain that “nothing [Dr. Alexander and the PA] did or failed to do caused plaintiff any harm or injury. The callous formation and dorsal angulation of the patient’s hand seen in imaging on 12-8-14 was a potential outcome of both casting and/or surgical intervention. [Plaintiff] understood that casting her hand could result in continued hand deformity and the patient agreed to proceed with casting after receiving an informed consent of her options.”

In opposing the motion, Ms. Fernandez’s attorney submitted a declaration from Dr. Robert Gelb, an orthopedic surgeon and hand sub-specialist.

In his declaration, Dr. Gelb criticized Dr. Alexander for not obtaining a new x-ray on the plaintiff’s first visit, explaining that the standard of care “requires an x-ray be taken when there is a displaced fracture to assess any movement in the displacement and to provide the patient with treatment options.” Dr. Gelb also declared that it was a violation of the standard of care to fail to discuss surgical treatment when x-rays revealed worse angulation and deformity after the cast’s removal.

Dr. Gelb concluded that based on his review of the records, his education, training, and experience, it was his professional opinion that Dr. Alexander  and the PA fell below the standard of care and caused the plaintiff’s further deformity of her left wrist. Dr. Gelb stated Dr. Alexander “failed to monitor the plaintiff’s condition and just accepted the deformity.”

A motion for summary judgment may succeed only absent a dispute in a material fact (the resolution of such factual disputes being the realm of juries). At the trial court, the judge ruled that the plaintiff introduced sufficient evidence to establish a dispute over whether Dr. Alexander met the standard of care. However, “plaintiff did not meet her burden of producing evidence that defendant’s acts or omissions were a substantial factor in causing plaintiff’s harm.”

The Los Angeles-based Court of Appeal agreed, upholding the lower court’s dismissal of the suit against Dr. Alexander and the PA.

In examining Dr. Gelb’s declaration, the Court of Appeal noted his opinion that Dr. Alexander’s care “caused Plaintiff’s further deformity of her left wrist” and his criticism of relying on the ER x-ray. That wasn’t enough, according to the Court of Appeal.

“None of this explains, for example, how the failure to obtain a new x-ray at the initial consultation caused the further deformity in plaintiff’s wrist, or how the (alleged) failure to discuss surgery at the initial consultation caused the further deformity shown by the imaging at the second consultation.

“Notably, Dr. Gelb does not opine that surgery would have produced a  better outcome,” the Court of Appeal observed.

“In short, Dr. Gelb offered no reasoned explanation connecting the factual predicates to the ultimate conclusion.”

 

Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should bedirected to gownby@CAPphysicians.com.