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USE OF A PATHOLOGIST TO EXPLAIN A VERY COMPLICATED CASE TO A JURY

How does a  lawyer defend a case where a 49 year old woman goes into a hospital for a hysterectomy and leaves three weeks later with an amputated left arm?

The issue in the case was the cause of the loss of plaintiff’s arm.  The cause was either the delayed treatment of compartment syndrome, as the plaintiff’s lawyer contended, or the blood clotting effects of her known condition of antiphospholipid syndrome (APS), as we contended.  Compartment syndrome results from an increase in pressure, due to various causes, in the muscle compartments of the forearm.  That pressure must be surgically relieved, as it will cause death of the muscle tissue and potential amputation, if not timely addressed.  APS is a congenital blood disorder which causes clotting and which could not be prevented while the plaintiff was having a hysterectomy.

Defense counsel believed that the pathology slides showed that the amputation was caused by APS and therefore, it was important for the jury to see, graphically, how APS and compartment syndrome develop and the differences between those conditions.  The pathologist used in the defense was able to explain that difference.  He photographed 18 slides and grossly enlarged them and then demonstrated to the jury that the plaintiff had her arm amputated because of blood clotting from APS.  He did so by pointing out enlarged veins and arteries almost all of which were filled with clotted blood.  That condition, he concluded, could only have been caused by APS. In fact, our expert demonstrated that had the arm been lost to compartment syndrome the picture would have been quite the opposite; that is, the blood vessels would have been collapsed.  His testimony took about 20 minutes, but because it was delivered clearly and concisely and supported by the enlarged photographs, the jury appeared to understand the difference and eventually concluded that the plaintiff’s injuries were caused by APS and not compartment syndrome, resulting in a defense verdict.

There were numerous other issues raised during this three week trial, but discussions with the jury after the verdict made clear that the pathology presentation was the most convincing evidence in the case.

-Paul E. Walker

Physician Discipline

What Should You Do When the New York State Department of Health Office of Professional Medical Conduct Informs you that You Must Appear for an Interview in its Office?

The New York State Department of Health Office of Professional Medical Conduct (OPMC) investigates all complaints made against medical doctors by patients, nurses, fellow doctors, or members of the public. A letter requiring you to come to OPMC means that there has been a complaint filed against you concerning your conduct as a physician. Your license to practice medicine may be in jeopardy. This is not an issue that you should attempt to solve yourself. It is highly recommended that you obtain the services of an attorney experienced in OPMC matters.

You have the right to be represented by counsel. You also may be entitled to have your legal fees paid by your professional liability insurer. Therefore, call your insurance company to see if you have coverage. The company will permit you to retain any attorney of your choice.

When OPMC calls you in for an interview you must be aware that:

• They will demand that you provide medical records for certain patients.

• They already will have interviewed the person who is making the complaint.

• They may have interviewed, without your knowledge, your employees, past or present.

• They may have interviewed other physicians, nurses, etc., at the hospitals where you work.

• They will have information about your past and pending medical malpractice cases. OPMC is not required to divulge to you the nature of the complaint, nor what anyone interviewed has said.

• They will know if you have had prior complaints filed against you with their office.

• They may know if you have been disciplined in another jurisdiction, or had your privileges restricted by any hospital during your career.

• They may have information regarding collateral matters such as divorces, marital difficulties, arrests, substance abuse problems, driving offenses, or any matter that may have had an impact on your practice. Any issue may be raised during an OPMC interview, even if not related directly to the complaint under investigation.

What Occurs at the Interview?

• At the interview there is usually an investigator and a medical doctor, both of whom have carefully read all of the data in your file. You should have an attorney with you and the two of you must be prepared as completely as possible.

• No stenographic record or tape recording of the interview is made, but the investigator can later testify in a hearing concerning what was said at the interview.

• Your performance at this interview will determine if OPMC will charge you with misconduct. If you are charged, you have two choices. You may settle the matter, which may involve accepting a penalty, sanction or restriction on your license to practice (including suspension); or

• You have a right to a trial before an administrative panel. You could win, in which case there will be no sanctions or penalties. If you lose, however, penalties and sanctions more severe than what you could have settled for, may be imposed. The most serious potential sanction is revocation of your license to practice medicine. You have a right of appeal.

• Therefore, the interview is your opportunity to convince OPMC to end the investigation.

-Paul E. Walker

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