Alaska physician wins case on ignored medical advice

The state Legislature fails to pass a bill that would have protected doctors from such lawsuits.

By Tanya Albert amednews correspondent — Posted June 7, 2004

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Jurors for the second time ruled in a physician defendant's favor in a case that caused doctors in Alaska to question whether to take after-hours calls and that also spurred legislation.

Using the state's "reasonable patient" standard, the jury in the case found that Anchorage general surgeon James O'Malley, MD, had given enough information to patient Vicki Marsingill over the phone for her to make an informed decision about whether to go to the hospital emergency department.

Marsingill experienced complications after she decided not to follow Dr. O'Malley's advice. In her lawsuit, first filed in 1995, she said Dr. O'Malley had breached his duty to give her enough information to make an informed choice.

Marsingill appealed the first verdict in favor of Dr. O'Malley to the Alaska Supreme Court. The high court in 2002 sent the case back to the trial court and asked the judge to give better jury instructions.

The case sparked debate in Alaska over how much information doctors should give patients over the phone and how much responsibility falls to patients. Some physicians have stopped taking phone calls after hours and instead instruct patients to go to an emergency department or call 911.

Alaska physicians also were concerned about the lawsuit's potential impact on telemedicine, which is often used because of the state's large geographic size.

"The entire state can breathe a little easier," Dr. O'Malley said after the verdict.

His attorney, Howard A. Lazar, added: "Justice was again done appropriately."

Marsingill, though, is disappointed with the ruling, and her lawyers plan to file an appeal. The trial court did not give the jury the instructions that the Alaska Supreme Court had approved, and the instructions that were given were unfavorable to Marsingill, said Marsingill's attorney, Richard H. Friedman.

"Despite what doctors think, the system is tilted toward them," he said.

Dr. O'Malley and his attorney also voiced concern about the jury instructions but for the opposite reason. They said the trial judge had set a standard that was harder for doctors to meet than the standard that the Alaska Supreme Court had laid out when it sent the case back to the trial court.

"If physicians have to meet that standard, it will simply mean there will be more lawsuits," Lazar said.

The case that sparked legislation

The lawsuit prompted Alaska lawmakers to consider a bill that would have made physicians immune from liability when they advise a patient via telephone or other electronic means to get further care at a hospital or other location and the patient does not follow that advice.

In this case, Marsingill, who had abdominal surgery several months earlier, called Dr. O'Malley at night complaining of pain, bloating and an inability to burp.

He told her he couldn't evaluate her over the phone, and he didn't give her an opinion about what might be causing her symptoms, according to court records. Instead, Dr. O'Malley told Marsingill that he would meet her at the emergency department.

She asked what they would do there, and he told her doctors would likely insert a nasogastric tube. Before hanging up the phone, Marsingill told Dr. O'Malley that she wasn't going to go to the hospital because she was feeling better and that she believed she could burp.

Later that night, she passed out and went to the hospital by ambulance. She had intestinal blockage and went into shock, according to court records. Brain damage and partial paralysis followed.

If Dr. O'Malley had lost the lawsuit, it could have cost him $7 million to $10 million. That's far more than his medical liability insurance would have covered.

Other doctors feared facing similar cases in the future and asked the Legislature for relief.

But the bill, which also included a $250,000 cap on noneconomic damages awarded in medical malpractice cases, died in the House Rules Committee in May. Doctors hope lawmakers will consider the issue again next year.

"This has to be changed legislatively," Dr. O'Malley said. "If you can't do things over the phone in a state this size, the people who get hurt are the patients."

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