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Telephone diagnosis & treatment overlooks cryptococcal meningitis.

CASE ON POINT: Tucker v. Talley, 2004 WL 1302249 S.E.2d--GA

ISSUE: One of the things that physicians' attorneys urge them not to do is diagnose and treat patients over the telephone. In this unusual Georgia case, one physician made the mistake of doing just that. In response to a telephone communication to his office from a patient, he, without ordering or having the results of any diagnostic tests, attributed the patient's symptoms of headache, nausea, and other illness to nothing serious. The patient was ultimately diagnosed with cryptococcal meningitis, from which the patient suffered permanent and irreparable harm while the condition went untreated, the physician and his professional group were subjected to a law suit. The suit could have been avoided had the physician insisted that the patient come to the office, and appropriate diagnostic tests had been ordered.

CASE FACTS: Lorie Justice was a patient of Dr. Thomas Talley. On May 12, 2000. She telephoned Dr. Talley's office and complained to Dr. Talley of severe headaches of such tremendous magnitude that they woke her up at night and caused her to vomit. She also complained of fever, nausea, sensitivity to bright light, and neck pain. Justice sought treatment from Dr. Talley and his professional group for these severe symptoms, including her headaches, fever, and nausea. However, Dr. Talley only prescribed pain medication and failed to conduct any diagnostic tests. Justice was subsequently diagnosed with cryptococcal meningitis. She brought suit against Dr. Talley and his group alleging, inter alia, that she suffered permanent and irreparable harm while her condition went untreated. Dr. Talley and his group moved to dismiss Justice's complaint for failure to file an affidavit of an expert competent to testify as required under Georgia law. The trial court, after considering the pleadings, depositions, and arguments of counsel, granted the defendants' motion. Justice appealed.

COURT'S OPINION The Court of Appeals of Georgia affirmed the judgment of the lower court. The court held, inter alia, that since the only expert medical witness the plaintiff had was a nurse practitioner, the court had no choice but to rule that her testimony was insufficient to meet the standards for acceptance as an expert witness in the malpractice case.

LEGAL COMMENTARY: The general rule is that a member of a school of practice other than that to which a defendants belongs is not competent to testify as an expert in a malpractice case. The question presented in this case was whether there was a sufficient proof of "overlapping expertise" to establish that the plaintiffs nurse-expert was competent to give an affidavit against the defendant, a medical doctor. The court agreed with the analysis of the trial court that a nurse practitioner cannot speak to an alleged missed case of cryptococcal meningitis on the part of a physician. The specific act of negligence alleged in Nurse Johnson's affidavit was the failure to conduct additional testing, and the act of negligence asserted in the complaint was that the "Defendants knew or should have known that Plaintiffs complaints were symptoms of a far more serious disease. Defendants should have followed up on Plaintiffs complaints and ordered additional testing." The ordering of medical tests is not shown to be an "overlapping" function between a nurse practitioner and a medical doctor inasmuch as a nurse does not have independent authority to order diagnostic tests. Editor's Note: Although the facts indicate that the patient spoke with a personnel in Dr. Talley's office about her headache, but did not remember whether she told that person about any other problems or symptoms. Although the facts indicate that Dr. Talley in making diagnosis and decision to prescribe pain medication in response to the patient's complaint about headaches in a telephone call and that Dr. Talley and his personnel acted on the patient's telephone call, there appeared to be no evidence that the substance of the call was miscommunication within the office or that there was otherwise some breakdown of administrative procedures. This case presents a classic situation, in which physician as well as the personnel in his office, made a serious blunder in attempting to diagnose a patient's condition and prescribe medication based on a telephone conversation. The court found that there was a complete absence of any evidence that either Dr Talley or an employee in his office was negligence. Accordingly, the court ruled that the trial court did not err in granting the defendants' motion for summary judgment on the patient's claim for negligence.

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 Providence, R.I., firm of 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 Reagan 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's Who in American Law, and Who's Who in America.
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Title Annotation:Medical Law Case of the Month
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Geographic Code:1USA
Date:Jun 1, 2004
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