Dr. Barry Gustin - Medical-Legal Expert Services

Health care practitioners have a code of ethics to which they must adhere. Because of the Hippocratic Oath, and the underlying power of their state and national licenses, they are held to a high ethical standard in their medical practice. Patients place their trust in physicians, and thus physicians are bound by this trust. Doctor-patient relationships by nature have open confidential communication as its foundation. In this context ethical principles must be strictly adhered to.

There are exceptions, however. If the expert has a lower level of training than that held by the defendant physician, he/she may still be able to opine provided that 1) he/she completed the same lower level of specialty training and 2) the standard of care in question is ordinarily associated with that lower level of training.

In Short v. Atlantic Care Regional Medical Center, the medical malpractice action was dismissed, the dismissal being upheld on appeal, for failure to provide an affidavit of merit from a medical expert qualified to comment on the relevant standards of care. The plaintiff filed an affidavit of merit from a general practitioner who was determined to be NOT statutorily competent to provide an opinion as to whether the defendant Board-certified Orthopedic Surgeon had deviated from accepted standards of practice under the Affidavit of Merit statute in that State.

By now most trial attorneys have heard about the case Levine v. Wyeth which will be argued before the U.S. Supreme Court on November 3, 2008. Ms. Levine is a 60'ish year old Vermont women who inadvertently had the drug Phenergan injected by "IV Push" into a hand artery by a physician's assistant. This led to gangrene and amputation of her hand and then later her arm up to her elbow. The medical negligence case was settled last year for $700,000.00. Levine has now sued Wyeth in a product liability action alleging that the product labeling is inadequate. She contends that the Phenegan label should state that it should never be given by direct "IV push".

A 52-year-old man with a history of hypertension presents for an elective subtotal colectomy for colon cancer. A recent workup identified a partially obstructing mass at the patient's splenic flexure. As an outpatient, he underwent a colonoscopy with a biopsy of the mass which revealed a moderately differentiated adenocarcinoma. At the time of admission, he denied any symptoms of constipation, diarrhea, abdominal pain, weight loss, or hematochezia. He has no history of heavy alcohol intake, tobacco use, or illicit drug use. He does not have a family history of malignancy. He undergoes a successful subtotal colectomy and ileocolic anastomosis, without any signs of complication. His immediate postoperative state is stable, but on postoperative day 5 he develops sudden-onset shortness of breath. He denies having any chest pain, palpitations, nausea, or diaphoresis.

On physical examination, his blood pressure is 132/74 mm Hg; his pulse is regular, with a rate of 105beats/min, and his respiratory rate is 30 breaths/min. His temperature is 98.7°F and his oxygen saturation is 90% on room air, which improves to 96% on 3 L of oxygen via nasal cannula. He is in mild respiratory distress but is able to speak in full sentences. He is not using the accessory muscles of respiration. The examination of his head and neck is normal. He has mildly decreased breath sounds at his right lung base. His heart examination demonstrates a normal S1 and S2 without murmurs or gallops. His abdomen is soft, nontender, and mildly distended with good bowel sounds; a midline incision scar is clean and nontender. He has palpable peripheral arterial pulses in his upper and lower extremities. The patient did not have edema or tenderness in the lower extremities.

The laboratory analyses, including a complete blood cell count and basic metabolic panel, are normal. An arterial blood gas on room air demonstrates a pH of 7.45, a pCO₂ of 32 mm Hg, and a pO₂ of 62 mm Hg, with an oxygen saturation of 93%. A chest x-ray reveals bibasilar subsegmental atelectasis. He is encouraged to perform incentive spirometry; however, his oxygen saturation deteriorates progressively and rapidly. On postoperative day 6 his hypoxemia is refractory to oxygen via a non-rebreather mask and he is intubated for hypoxemic respiratory distress and impending respiratory arrest. He is transferred to the ICU. His ECG shows an S1Q3T3 pattern and sinus tachycardia.