Perko is an attorney in the Columbus, Ohio office of Reminger Co, LPA, where she specializes in medical malpractice defense litigation and transactional matters.
"The collaboration between the settling defendants and plaintiff mobilized the urologist, who ultimately participated in the overall settlement of the applicable malpractice cap," writes Acacia Brush Perko, Esq.
A 26-year-old married mother of 2 young children had a history of methicillin-resistant staph aureus (MRSA) infections that manifested as skin outbreaks of carbuncles and furuncles. She developed a lesion in the middle of her back. As it was scabbing over, she developed unbearable back pain with fever.
She presented to the emergency department and was then admitted to the hospital under the care of an internist on a Friday morning. She had an elevated white blood cell count, clearly indicating infection. Her urinalysis revealed no bacteria, strongly indicating that she did not have a urinary tract infection. Despite this, the internist asked for a urology consult.
Urologist diagnoses patient with kidney infection
The urologist saw the plaintiff that Friday afternoon and made a diagnosis of kidney infection, even though the urinalysis showed no signs of bacteria. The urologist also asked for an infectious disease consultation because of the history of methicillin-resistant Staphylococcus aureus (MRSA).
The hospital nurses told the infectious disease doctor of the consult request at 3:45 p.m. Friday and 3 more times over the weekend. The doctor was in the hospital Saturday and Sunday but did not see the patient.
The admitting internist and consulting urologist knew the infectious disease consultation was “necessary, reasonable, and prudent,” and that it did not come on Saturday or Sunday. Neither the internist nor the urologist did anything effective to get the infectious disease consult. They did not attempt a transfer.
The plaintiff had a continuous high fever with intractable back pain from the date of her admission on the Friday.
On Sunday, the hospital nurses noted weakness in the lower extremities and inability to empty her bladder, both of which were reported to the urologist on Sunday. The urologist performed an informal neurological examination but noted no weakness, and he did not request a neurology consult.
On Sunday evening, the plaintiff lost feeling in her legs and could not walk. The internist was notified at home, and he stated he would get a neurology consult in the morning. The infectious disease consult did not come until Monday morning, when the infectious disease doctor quickly diagnosed an epidural abscess from the MRSA lesion on the plaintiff’s back and ordered a stat MRI and decompression.
The plaintiff was left permanently paralyzed from the waist down with permanent loss of bowel and bladder control.
The plaintiff then filed a malpractice lawsuit claiming medical negligence against the admitting internist, urologist, the infectious disease doctor, and the hospital. It alleged improper management and treatment and delayed diagnosis of an epidural abscess that resulted in paralysis from the waist down and loss of bowel and bladder control.
Her allegations against the admitting internist and consulting urologist included failure to diagnose epidural abscess, improper diagnosis of kidney infection, and failure to transfer when the infectious disease consultation was not performed timely. Allegations of negligence against the infectious disease doctor included failure to respond timely to request for infectious disease consultation. Allegations against the hospital included failure to properly obtain infectious disease consultation or request transfer.
During pretrial discovery, the plaintiff claimed $200,925 in past medicals and presented a life care plan with a payout of $11,946,320 over 52 years.
Urologist initially refuses to participate in settlement
After the deposition of all parties, 3 of 4 defendants wanted to voluntarily pay the applicable medical malpractice cap of $1.7 million. The urologist refused to participate in any settlement. The plaintiff and the other 3 defendants reached a settlement, in which the 3 settling defendants would immediately pay $850,000 and the plaintiff would go to trial against the urologist who refused to settle. If the plaintiff lost or recovered less than the cap of $1.7 million, the settling defendants guaranteed an additional $850,000. If the plaintiff won against the defendant urologist, the plaintiff would recover $850,000 from him.
When the urologist learned of the settlement, he quickly mobilized to be included in the original settlement. The admitting internist and infectious disease doctor, who had the same insurance carrier, paid $906,666. The urologist, who was covered by a separate insurance carrier, contributed $340,000 to the settlement. The hospital, which was self-insured, paid $453,333.
LEGAL PERSPECTIVE: In cases with multiple defendants, there are any number of reasons why a plaintiff might be willing to accept less in settlement from 1 defendant but not another. Sometimes a plaintiff might be willing to accept less from 1 defendant in the hope or expectation that the plaintiff can recover substantially more money from a remaining tortfeasor.
Here, the total available recovery under the applicable malpractice cap was $1.7 million. To get to that number, the settling defendants and plaintiff put the risk of trial on the urologist, who did not want to participate in the settlement. If the urologist paid before trial with the other defendants, his loss was $425,000, but his exposure at trial would be $850,000. The collaboration between the settling defendants and plaintiff mobilized the urologist, who ultimately participated in the overall settlement of the applicable malpractice cap.
Perko is an attorney in the Columbus, Ohio office of Reminger Co, LPA, where she specializes in medical malpractice defense litigation and transactional matters. She welcomes your feedback on this column at APerko@reminger.com.