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How did Dr. diagnose pericarditis without a history?

ON AUGUST 20, 1999, KEVIN CUMMINGS UNDERWENT LAPAROSCOPIC SURGERY FOR THE REMOVAL OF HIS GALLBLADDER. On the second day after surgery, Kevin suffered pain similar to that experienced before surgery, and on August 30, 1999, Kevin returned to Dr. Lakshmanan, the surgeon who performed the surgery, for a scheduled follow-up appointment. He complained about pain. Dr. Lakshmanan provided Kevin with a prescription for Pepcid or Prevacid for an esophageal spasm. Kevin's pain continued. Because Dr. Lakshmanan was leaving town, on September 1, 1999, his office referred Kevin to Dr. Jha, who treated Kevin on September 2, 1999. During Kevin's visit to Dr. Jha's office, be completed a form entitled "Welcome to Our Practice," on which be identified chest pain as his reason for the visit and rated the pain as being four on a scale of one to five. Kevin noted on the form that "gallbladder" was an "[a]ssociated [sign]/[s]ymptom." Dr. Jha diagnosed Kevin as having viral pericarditis and prescribed a nonsteroidal, anti-inflammatory drug, indomethacin. On September 6 or 7, Kevin phoned Dr. Jha's office stating that, although he was still experiencing some pain, the medication was helping to alleviate it. Kevin requested more medicine before he left town for a rodeo in Kansas City, Missouri, and Dr. Jha prescribed additional indomethacin. Kevin and his wife proceeded to Kansas City where Kevin participated in the rodeo. The next morning, Kevin woke with severe chest pain. He was admitted to Kansas City Hospital in Kansas City, Missouri, with chest and upper abdominal discomfort. Kevin informed Dr. Douglas Bogart, a cardiologist, that be had been diagnosed with pericarditis. After undergoing a clinical examination, an echocardiogram, which was normal, and ah electrocardiogram (EKG), which was also normal, Dr. Bogart was not confident that Kevin's pain was due to a cardiac issue such as pericarditis. Dr. Bogart requested gastrointestinal and general surgery consultations. Dr. Trent Falling, a general surgeon, ordered a hepatobilliary scan, whereby a small amount of radioactive tracer was injected into Kevin's bloodstream to identify whether ot not bile was successfully moving through the system into the small intestine. The radiologist's interpretation of the scan indicated that there was a bile leak in the bile duct, and Kevin was referred to gastroenterology. Upon discovering the bile leak, Dr. Filling sought to drain the bile that was accumulating and to drain the biliary tract. Initially, to avoid repeat surgery, Dr. Falling chose an Endoscopic Retrograde Cholangiopancreatography (ERCP) procedure, which involved the passage of a flexible endoscope through the upper digestive tract into the upper small intestine. When an ERCP is successfully performed, the anatomy is defined, the bile leak from the liver bed is identified, a stent is placed, the system is decompressed, and percutaneous drainage is established so bile does not pool in the abdominal cavity. In such a case, the bile leak may seal on its own over a period of time to avoid a trip to the operating room. Subsequently, it was determined that the bile leak was in close proximity to where the gallbladder had been removed, which resulted in the placing of a drain in that area. Kevin was hospitalized in the ICU for seven days. Upon being discharged from the hospital, Kevin brought suit against Drs. Jha and Lakhmanan. After a trial, the jury returned a verdict for Kevin for $210,000. The trial court entered judgment on the jury's verdict. Dr. Lakshmanan reached a settlement with the plaintiffs. The trial court denied Dr. Jha's motions for judgment notwithstanding the verdict or, as an alternative, for a new trial. He appealed.

THE COURT OF APPEALS OF FLORIDA AFFIRMED THE JUDGMENT DENYING DR. JHA'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND/ OR A NEW TRIAL. The court held, inter alia, that the plaintiffs' attorney's cross-examination of Dr. Jha did not rise to the level of abuse and prejudice to require the court to grant Dr. Jha's motion for judgment notwithstanding the verdict or grant his motion for a new trial.

THE COURT FOCUSED, INTER ALIA, ON DR. JHA'S FAILURE TO MEET THE STANDARD OF CARE IN RENDERING TREATMENT. With regard to proof of the applicable standard of care and proof that it went unmet, the court found that "[a] physician or surgeon is bound to possess and use reasonable skill, not perhaps the highest degree of skill that one learned in the profession may acquire, but reasonable skill such as physicians in good practice ordinarily use and would bring to a similar case. The exercise of skill and care is applicable to diagnosis as well as treatment." The law is replete with references to the statements incorporated into the court's written opinion. The court noted that the plaintiffs' expert testified that pericarditis is a clinical diagnosis wherein the physician must take an initial history and consider test results to reach an analytical conclusion, and that the standard of cafe would require the doctor to have a thorough understanding of the patient's history. Dr. Jha failed in this regard! Cummings v. Jha, 5-08-0182 (9/25/2009)-FL

A. David Tammelleo JD Editor & Publisher

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm or A. David Tammelleo & Associates. He 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 Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who Who in American Law, Who's Who in America and Who's Who in the World.
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Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Date:Nov 1, 2009
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