Policy of referring ER patients only to Drs. on `list' is risky.

SHOULD A HOSPITAL REFER ITS EMERGENCY ROOM PATIENTS TO A `LIST' OF PHYSICIANS FOR FOLLOW-UP TREATMENT? That was the issue with which the Pennsylvania courts were confronted in this case. An emergency room physician who had reviewed x-rays regarding the possibility of a fracture in a patient noted a "coin" size lesion on her lung He maintained that he notified the patient of the lesion. The patient claimed otherwise. The hospital involved had a list of physicians to whom ER patients were to report for follow-up care after their emergency room treatment. The patient's own physician was not on the list. Years later, the patient sought treatment from her own physician for a bronchial condition. She was diagnosed with stage 3B lung cancer. Should the hospital have been held liable for failing to disclose the "coin" size lesion to the patient?

ON DECEMBER 17, 1991, CAROL HALL SLIPPED AND FELL ON A PATCH OF ICE OUTSIDE HER PLACE OF EMPLOYMENT. She drove herself to Tyler Memorial Hospital Emergency Room. The hospital had a written policy which applied to emergency room patients who either had no family physician or whose family physician did not have staff privileges at the hospital. The hospital assigned a physician from its rotating "daytime on-call list." Following treatment, the patient's emergency room records were then sent to the assigned physician. The patient's own physician, Dr. Raymond Bennett, did not have privileges at the hospital. The hospital assigned Dr. Clarence Mast as her physician. Dr. Mast never examined the patient. When at the hospital, the patient was examined by Dr. Donald Jackson, the emergency room physician, who ordered x-rays to determine whether the patient had fractured any bones in her arms or torso. Although the x-ray revealed no bone fractures, it did reveal a one-centimeter "coin" lesion on one of the patient's lungs. The radiologist notified Dr. Jackson of his findings. Dr. Jackson's ER notes indicate that he was aware of the lesion. Dr. Jackson maintained that he "did not specifically remember" informing the patient of the lesion, but that it was his practice to notify patients of their x-ray results, and, therefore, he "assumed" that he had done so in this case. The patient maintained that neither Dr. Jackson nor anyone else at the hospital advised her of the lesion. The patient was not admitted but was discharged from the ER and sent back to work with written instructions to follow up with her family physician if necessary. Pursuant to hospital policy, the patient's emergency room records were forwarded to Dr. Mast. The patient did not follow up with her family physician. However, in July 1994, after developing a chronic bronchial problem, the patient saw her family physician, Dr. Bennett, who ordered an x-ray. The x-ray revealed a seven-centimeter mass on the patient's lung, at the same location as the coin lesion discovered by the radiologist at the hospital in 1991. Dr. Bennett referred the patient to a specialist, who determined that she had inoperable stage 3B-lung cancer. The patient died on August 23, 1995. The patient's personal representatives brought suit against the hospital and Dr. Jackson. The plaintiff's presented expert testimony indicating that had the patient's tumor been treated in 1991, a survival rate of 80-90 percent would have been expected instead of the 18 percent that existed when she was finally diagnosed and treated in 1994. The trial court granted the hospital a compulsory non-suit on the issue of punitive damages. However, after trial, the jury awarded the plaintiffs $1,694,928. The trial court reduced the award to $1,496,621 to reflect the patient's contributory negligence which the trial court calculated to be 11.7 percent. Both parties appealed.

THE SUPERIOR COURT OF PENNSYLVANIA AFFIRMED THE JUDGMENT OF THE TRIAL COURT. The court affirmed the lower court's judgment denying punitive damages. The purpose of punitive damages is to punish outrageous and wanton conduct committed in reckless disregard of another's rights. Punitive damages serve as a deterrent as well as a punishment. Punitive damages may only be awarded when a party's conduct is malicious, wanton, willful, oppressive, or exhibits a reckless indifference to others.

THERE WAS A FACT QUESTION AS TO WHETHER DR. JACKSON NOTIFIED THE PATIENT OF THE LESION. The court found that there was more than adequate evidence for a reasonable jury to conclude that Dr. Jackson failed to notify the patient of the lesion and thus deprived her of the opportunity to pursue her 80-90 percent chance of survival. Editor's Note: Despite the opinion of the court in this case, any hospital having a "list" as the hospital in this case did might want to reassess its position. Hall v. Jackson, 2001 WL 1506037 A.2d -PA

A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as weel as his achievements as an attorney and lecturer, have won him recognition in Martindale_Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.