Massive Emergency Room Malpractice Award For Noncompliant Patient

I’ve written several times before about where multi-million dollar jury verdicts come from, like in A Look Behind The Scenes Of A Multi-Million Dollar Personal Injury Verdict and Strange Birth Injury Award: $21M Medical Expenses, $0 Pain and Suffering. There’s no secret recipe. Facts win cases; outrage at the defendant’s reckless conduct makes the damage awards larger.

Another example was published yesterday in The Legal Intelligencer:

A Philadelphia jury awarded $21.4 million on Friday to a diabetic man with brain damage over the care he received in the emergency room of Temple University Hospital.

The defense argued in court papers that when Campbell, an insulin-dependent diabetic, was taken to the hospital Oct. 13, 2007, he was administered glucagons and glucopaste by emergency medical technicians. His initial blood sugar was 74 by the time he arrived in the emergency room at 9:10 p.m., 79 by 10:40 p.m. and 118 by 12:14 a.m. Campbell was discharged at 1:05 a.m. in the company of family members and went to bed at 3 a.m.

Campbell’s relatives found him unresponsive at 11 a.m.

According to the defense pretrial memorandum, Campbell’s medical history included schizophrenia, depression, pancreatitis and alcohol abuse. Campbell was brought to the hospital 11 times for high or low blood sugar levels in the five years prior to his Oct. 13, 2007, visit to the emergency room, and he was frequently noncompliant with taking insulin, the defense argued.

Campbell was a “noncompliant” patient. It’s hard to know what that really means — everyone who doesn’t follow their doctor’s words to the letter is “noncompliant” — but the docket includes some references to alcohol abuse. The jury found him to be 10 percent at fault for the metabolic encephalopathy that has left him severely brain damaged and in need of constant custodial care.

So what happened? Why only 10 percent liable for his contributions to his condition? And why such a high award on damages, an award that seems likely to exceed his medical needs?

That’s where both facts win cases and outrage can help develop the award:

[Thomas J. Duffy of Duffy & Partners] said they argued to the jury that because Campbell had visited the emergency room Oct. 11, 2007, due to a severe episode of hypoglycemia, and returned to the emergency room two days later for the same issue, it was a breach of the standard of care to release Campbell without admitting him and investigating why Campbell was repeatedly having hypoglycemic episodes.

Indeed. And it gets worse:

The emergency room doctors differed on whether one of them treated Campbell, Duffy said. Dr. Michael DeAngelis filed a certificate stating he had not treated Campbell, while Dr. Joseph R. Lex Jr. and Dr. Christopher C. Vates disputed DeAngelis’ account, Duffy said.

That sort of dispute is quite striking; it’s exceedingly rare to see emergency department physicians who work together point the finger at one another. They typically all point the finger at the patient.

As far as I can tell, none of the physicians were willing to take responsibility for Campbell’s care. Maybe medical malpractice is over–thinking it; maybe the case is extraordinarily simple. Campbell had already come in two days before for hypoglycemia caused by his own “noncompliance” so the emergency physicians, annoyed by the distraction, told the nurses to give him some shots and send him home again.

On some superficial level that’s understandable. Emergency room nurses and doctors are on the frontline of society’s biggest problems. Their time is often wasted by malingering patients. They’re threatened and berated. They see many of the same patients over and over again for the same conditions. They sometimes have to blow off steam. They’re only human.

But “only human” isn’t the standard to which professionals and institutions are held. Campbell needed more than a couple cursory diabetic shots; he needed a doctor. The jury realized that he didn’t get one, and they were angry about it, angry enough to want to protect their community from that sort of lapse in care and responsibility happening again.

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  • Jeremy M

    I know its every health care providers duty to be a patient advocate. Treat each patient the same, even if they are one of the annoying repeat offenders that are non compliant with any regiem or advice. But at what point does an individual that has repeatedly been given everything needed to deal with and treat a disease need to be held accountable for his/her own health? On top of the litigation against the ED Drs are they going to sue his endocrineologist or his addictions counciler? Ever time someone has a MI and has been non compliant with excercise, weight loss and medication regiems should those patients sue the doctors they have seen for not succeding or feeding them pills or forcing excercise upon them?

  • Jason

    Settlements like this do nothing to improve the quality of healthcare in the area; rather, physicians in the area (who I am sure are acutely aware of the verdict) will begin to reflexively admit patients who likely don’t need it, and perform further testing that is likely unneeded, further increasing the cost of healthcare. Fine and upstanding physicians such as Joe Lex may ponder the idea of leaving the state to provide healthcare in an area which isn’t so litiginous, further adding to the debt of quality physicians in the area.

    The problem with these lawsuits is that they attempt to lay blame on a particular party. Management of diabetes is the responsibility of the patient. No doubt he had a primary care doctor who had been managing his home medications as well. So what about the negligence of the patient in self care over the past several days, weeks, months, years? Had the primary care physician been involved in his care lately? Had the patient bothered to keep appointments? Had the primary care doctor done the necessary preventive measures as well? What about the role of the family members? Could they not have been helping in regards to checking blood sugar, counseling him over time about his apparent noncompliance with his (I’m sure) diet and lifestyle? The payment of the lawsuit is a bandaid over a festering abscess – it’s not going to work.

  • OBD

    First let me say, I’m an Emergency Physician, so any biases will likely stem from there. I’d like to address some of your points, Mr. Kennerly, and ask a few questions if you don’t mind.

    I don’t know that it’s standard-of-care to admit someone who presents for a second time with hypoglycemia (especially when there is a long standing history of this) when we know the cause. Additionally, he was released in the care of his family.

    Let’s say, though, that he was admitted. He would be given something to eat, his sugars observed, and given a stern lecture on the dangers of alcoholism. He would leave this hospital eventually and most likely return to his habit of drinking and malnutrition. His sugar would probably drop and he’d return to an emergency department.

    Are we (as a society) to make up for the ills of those who choose to live recklessly and who will bear this cost?

    I would like to see a time when patients are held responsible for their choices (smoking, weight, drugs, medication non-compliance) and physicians serve as their guides to direct them toward smarter ones. It is true that some patients are not in control any more (as with drug and alcohol problems), but this decision sends the message that they don’t have to be.

    I would argue, he did get a doctor. He just didn’t get a baby sitter.

    Thank you for sharing and listening.

  • shoot82560

    Did the plaintiff have some condition the doctors failed to diagnose? I don’t see anything mentioned. If not, there’s a big causation problem here. And a bigger defensive medicine problem, too: every repeat visitor diabetic is going to now require hospitaliztion and a battery of tests, when 99% of the time it’s a problem of mismanagement of diabetes, which is no simple task to get right.

  • Dbl1955

    Only in Philadelphia…the net result is you are going to drive any dedicated emergency medicine doctor from practicing in the inner city. The standard of care was followed. it is impossible to admit every noncompliant patient with an exacerbation of a chronic condition. This is why health care is going broke.

  • Nrsange

    As an ER nurse, I can offer two observations. First, this patient was not observed long enough to determine that his blood sugar was going to remain stable. Second, there is no mention as to whether this patient was provided with any food, namely protein, to sustain his blood sugar level. Glucagon and glucopaste only last so long. Who knows what type of insulin he took, when he administered it, etc.

    While I agree with all of the comments below, this patient did not necessarily need admission, but he most likely did need “babysitters” in the form of the ER staff, to assure that his blood sugar was stable and sustained before discharge. I don’t think that can be accomplished in two and a half hours.

    During the 5 years that I worked night shift, we kept many, many alcoholic patients in the ER for the entire night until they were awake and had eaten a full meal.

    Just my two cents’ worth!

    • Anonymous

      Thanks for the comments. My understanding is that the case didn’t hinge mostly on his final visit, but rather the fact he had gone to the ER several times before in just the few days prior, and so they had reason to suspect something else was going wrong, yet they failed to follow up on it.

  • Spookykid0105

    It is the duty of the ER/physician/hospital……..regardless…….

  • Smash Huds

    Emergency room Physician Assistant for many years. Have seen so many non-compliant patients. This patient was probably not observed long enough, had underlying and contributory health issues, and it is unfortunate that he had a bad outcome. However, blaming the ED team for his poor outcome with such a large “award” is what is wrong with medicine today and why the cost of medical care is so prohibitive.

    • Max Kennerly

      The entire malpractice system accounts for less than 0.5% of healthcare costs.

      —– Reply message —–

      • Mike

        Spoken like a true lawyer.

        It accounts for less than 0.5% of the direct healthcare costs, but when you factor in the indirect costs of unnecessary/excessive treatment rendered in a misguided attempt to “cover your ass,” the “entire malpractice system” is one of the largest drivers of cost in our broken healthcare system here in the U.S.

        Just think, since this award I’d imagine every ED provider in Pennsylvania will now admit every malingering/non-compliant/homeless patient for “observation and tests.” There is a real cost associated with this.

        • Max Kennerly

          Do you have any evidence at all for that assertion?

        • Mike


          This is a reasonably well-done study encompassing survey of over 130,000 physicians, along with findings from a large Gallup survey in 2010. They estimate the costs of defensive medicine to represent 26-34% of all US healthcare costs:

          This is a 10 year-old article specific to defensive medicine practice patterns among providers in Pennsylvania:

          2002 lower-powered study that suggested neonatologists resuscitate severely premature infants more frequently if parents thought to be litigious.

          I only point this out as severely premature infants resuscitated against medical advice typically go on to have exorbitant medical costs, and generally poor outcomes. Not taking any ethical position here, just pointing out the financial ramifications of defensive medical practice…

          And an oldie, but a goodie: a 1993 study strongly supporting the suspicion that many primary cesarean sections in New York state were performed in an attempt to avoid litigation.

          BTW — this actually popped up in my news feed yesterday, but I didn’t realize it was over 2 years old. My apologies for reviving the old thread — but I suppose if the positions are still up for debate, so be it…

        • Max Kennerly

          Thanks for an actually-sourced response! Quite a rarity on the Internet. No worries about it being an old thread, the issue is just as timely.
          Your first two are based entirely on doctors’ self-reporting. Do you think your taxes are too high? That everyone on the highway driving faster than you is crazy, and everyone driving more slowly is a jerk? The idea that “defensive medicine” represents a third of healthcare costs is completely insane — liability itself is less than half a percent. Considering how hard proponents of “defensive medicine” typically struggle to give examples of defensive medicine at all, the idea that it’s a third all of costs is nuts.
          The third one doesn’t show what you think. I’m unaware of any “failure to resuscitate severely premature” case ever being filed, settled, making it to trial, resulting in a verdict, or resulting in a paid judgment. Neonatologists might be changing their behavior to avoid the annoyance of a complaining parent, but they’re not doing it to avoid liability. You could eliminate tort law entirely and get the same result: some doctors change behavior in response to patients perceived to be difficult.
          The 1993 study is again self-reported, but I won’t contest that liability encourages more c-sections — I just happen to believe that’s a good thing. I know more than enough kids with preventable cerebral palsy. You’re starting with the assumption that OBs are flawless, always doing c-sections when indicated, and then assuming any additional c-sections must be wasteful. From a pure “cost” issue, the “cost” of an unnecessary c-section is quite low (even if we accept that it increases asthma, etc, all of which theories seem largely speculative), whereas the cost of each child with untreated fetal distress is extremely high.