Ohio, a 27-year-old man presented to the ED with a temperature of 103[degrees]F and other signs and symptoms of contamination. He had a history of idiopathic thrombocytopenic purpura (ITP), for which he had previously undergone removal of his spleen. At the ED, he was seen by the defendant emergency physician, Dr. A., who made a diagnosis of flu and obtained a culture.

Dr. A. also called Dr. B., the defendant oncologist/hematologist, for a consult. According to Dr. A., he asked Dr. B. whether antibiotics should begranted before the patient was released, and Dr. B. told him antibiotics were not necessary. The man was then discharged.

By the next morning, his symptoms had worsened. He presented to a second ED, where he died as a result of an overwhelming contamination.

Plaintiff for the decedent claimed that antibiotics should have been granted due to his pre-existing ITP and history of splenectomy. Dr. A. claimed that he had appropriately consulted with Dr. B. and had followed the instructions he was given. Dr. B. acknowledged that he had been called and notified that the decedent was in the ED, but he maintained that he had not been asked for advice about whether to prescribe antibiotics.


According to a published account, a $750,000 verdict was returned. Dr. B. was found 70% at fault, and Dr. A. was found 30% at fault.


This case involves failure to recognize and treat overwhelming postsplenectomy contamination (OPSI). Given the patient's young age and the lost possibility for a full recovery, the jury's verdict is restrained and probably reflects a relatively conservative jury pool.

Asplenic patients are usually aware that they do not have a spleen, but they may not recognize their associated risk for serious contamination. The fact of the matter is that asplenic patients are immunocompromised. When an asplenic patient presents with a febrile illness that is consistent with OPSI, this is a true medical emergency. These patients must undergo a vigorous workup and expeditious administration of antibiotics to offer the best chance for survival. Even with appropriate antibiotic treatment and supportive therapies, mortality associated with OPSI ranges between 50% and 80%.

In this case, the emergency physician obtained a hematology/oncology consultation. There is a dispute between the defendant physicians as to whether antibiotics were recommended or even discussed. It is unclear from the record whether or not the emergency physician's medical note includes such a discussion. The jury apportioned the majority of the liability to the hematologist but still found the emergency physician negligent.

Conflict between clinicians or departments can get testy in the medical record; don't let that happen. An otherwise defensible record of care can become a nightmare for defense counsel when an interpersonal or interdepartmental conflict is played out in the medical record. As with personal conflict, defensive addendums to a patient's record can be damaging. Jurors generally reward "finger pointing" between medical professionals with a verdict for the plaintiff, even when the care itself may be defensible. Regularly held peer review offers clinicians an opportunity to discuss difficult cases without fearing that those discussions will be used as evidence. A formal peer review committee is the exclusive and proper outlet to discuss challenging medical cases.

Appropriate care for our patients is the ultimate necessity. It can be tricky for a clinician seeking a consultation to challenge the consultant's recommendation. When confronted with a recommendation that leaves you (the referring clinician) with "heartburn," it may be helpful for you to restate your misgivings affirmatively--for example, "My concern with that approach is--," then state the risks in the gravest terms the situation will allow. Make your preferred course of action apparent: "Honestly, I'd like to admit the patient because of--."

If you remain uneasy, seek another colleague's opinion. Record the substance of the consultation, concerns, and responses fully, accurately but dispassionately, in the patient's record.

Make sure to give the consultant all the medical information available; and if you are the consultant, be sure you have received all available information. Treat the consultation formally and with your full attention. The jury will expect the consultant to be fully involved in caring for the patient.

Here, if the emergency physician did not agree with the hematologist, it would have been reasonable for him to obtain a second opinion or to admit the patient and begin empiric antibiotic treatment.

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

David M. Lang is an experienced PA and a former medical malpractice defense attorney who practices law in Granite Bay, California. Julia Pallentino practices in gastroenterology and, with her JD, conducts malpractice workshops at professional conferences.