Monday, January 27, 2014

Medical Malpractice and 3-Way Sex

As a change of pace from health policy, here's an excerpt from a recent Medscape article by Michael J. Sacopulos, JD, "5 Unexpected Ways You Could Get Sued":

Patient Not Warned to Avoid Physical Exertion; Dies During Threesome

A Lawrenceville, Georgia, jury awarded $3 million to the estate of William Martinez. Mr. Martinez was 31 years old in 2009, when he entered his cardiologist's office. There he complained of chest pain that radiated into his arm.

His cardiologist found that Mr. Martinez was at "high risk" of having coronary disease and ordered a nuclear test to be performed. The test was scheduled to take place 8 days after Mr. Martinez' initial appointment with his cardiologist. The cardiologist alleges that Mr. Martinez was instructed to avoid exertional activity until after the nuclear stress test was completed. The family of Mr. Martinez argues that no such instruction was given.

The day before his nuclear stress test, Mr. Martinez apparently engaged in some "exertional activity." In fact, Mr. Martinez engaged in a threesome with a woman who was not his wife as well as a male friend. During this encounter, Mr. Martinez died.

His family members then proceeded to bring a medical malpractice claim against his cardiologist and the cardiologist's practice. Presumably the family's thought was if William Martinez had been properly instructed to avoid high-risk activities, he certainly would have complied.

The family initially brought a claim for $5 million dollars, but this claim was reduced by a finding that Martinez was 40% liable for his own death. Note the mathematics: One would assume that engaging in a 3-way activity would make him one-third liable for his own damages, but apparently there were facts not known to me that increased his liability to 40%.

In August 2011, the New England Journal of Medicine reported that cardiologists are the physicians most frequently named in medical malpractice actions. In fact, cardiologists in the United States have a roughly 1 in 5 chance of being sued in any given year. Based on the Martinez case, you can see how these statistics can actually be true. The cardiologist's attorney indicates that an appeal will be taken. For now, we will all have to wait to see how the appellant court system of Georgia reacts to this case.

Lesson learned: Document every instruction.