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Autoimmune Disease Patient on Immunosuppressant Dies; Pneumonitis; Evidence Issues


A man presented to the hospital complaining of coughing, shortness of breath, and chest pain. The man was seen by a physician’s assistant (PA). Following the PA’s initial clinical examination, the PA noted that the man did not physically appear ill, exhibited no confusion, kidney dysfunction or blood pressure abnormalities, and had a temperature of only 99.5 degrees.

 

The PA obtained a medical history from the man. The PA noted the man’s use of Enbrel (etanercept), a biopharmaceutical that treats autoimmune diseases by interfering with tumor necrosis factor (TNF; a soluble inflammatory cytokine) by acting as a TNF inhibitor. The FDA placed a black box warning on etanercept due to a number of serious infections associated with the drug.

 

Upon listening to the man’s breathing, the PA detected a crackling sound consistent with inflammation or infection in the lungs and ordered a chest x-ray. Based upon the results of the x-ray, the PA sent the man directly to a medical center for a CT scan of the man’s chest. The CT scan results were read by a radiologist and noted to be consistent with pneumonitis, inflammation of the walls of the alveoli in the lungs, of uncertain etiology.

 

The man was prescribed an antibiotic, Levaquin, and a follow-up appointment was made for the man’s return to the hospital five days later. The man was directed to return to the hospital earlier if his condition deteriorated or persisted.

 

Four days after initially presenting to the hospital, the man’s condition had deteriorated such that the man was unable to climb stairs. When the man returned to the hospital for the follow-up appointment the next day, the man complained of shortness of breath and decreased appetite. The man was transported directly from the hospital to a third facility, by ambulance. Four days later, the man died in the third facility.

 

The man’s estate filed a wrongful death action against the PA and first hospital. The complaint alleged that the PA and hospital deviated from the accepted standard of care in their treatment of the man, proximately causing or contributing to his death.

 

The hospital and PA filed motions in limine that sought to exclude or limit the estate from presenting certain evidence and making certain inferences at trial. Among these motions was a motion to prohibit the estate from arguing that jurors had the power to improve the personal and community safety of jury members by reaching a verdict that would reduce or eliminate allegedly dangerous or unsafe conduct. The hospital and PA contended that such an argument encouraged jurors to depart from impartiality. The Circuit Court of Berkley County denied the hospital and PA’s motion.

 

The hospital moved that a copy of West Virginia Code § 30-3-16, repealed in 2014, governing PAs, not be admitted as a trial exhibit. The estate’s expert identified this code section as comporting with what the expert believed was the PA’s required standard of care. As such, the estate argued that the statute was relevant. Conversely, the hospital argued that admitting a copy of the code section as a trial exhibit was unnecessary, as the estate was permitted to read into the record portions of the statute while questioning its expert. Further, the hospital alleged that the introduction of a copy of the code section as a trial exhibit could possibly mislead the jury to conclude that the statute was the statement of law as to what comprised the applicable standard of care. The trial court granted the hospital’s motion and did not admit a copy of the code section as a trial exhibit.

 

The hospital moved that a copy of the hospital’s PA job description not be admitted as a trial exhibit. The hospital argued that it was not relevant because it was not the job description in effect during the relevant time period, but was a subsequent revision. The trial court excluded the job description as a trial exhibit.

 

The case proceeded to trial. During the opening statement, the estate’s counsel likened the standard of care to a “rule.” In response to an objection made by the hospital’s counsel, the trial court ruled that the standard of care must be described to the jury, by both parties, simply as a standard of care, not a rule. Additionally, in response to another objection made by the hospital, the estate’s counsel was cautioned by the trial court to refrain from using the term “danger” or “dangerous” to describe the man’s medical condition.

 

During the hospital’s presentation of evidence, the hospital called an expert in family practice medicine to testify. Under direct examination, the hospital’s expert in family practice medicine was asked to provide his interpretation of the CT scan report that formed the basis, in part, of the PA’s treatment plan. The hospital’s expert in family practice medicine was asked what a reading of the report “implied to him.” The hospital’s expert in family practice medicine testified about the treating radiologist’s impressions of the CT scan results. The estate objected arguing that the hospital was using its expert to interject that the radiologist agreed with the PA’s treatment plan for the man. The trial court allowed the testimony.

 

The PA’s supervising physician at the hospital testified. The supervising physician stated that the PA was a careful individual and an outstanding PA. The supervising physician also testified about the treatment plan the supervising physician would have developed for the man. The estate objected. The trial court allowed the testimony.

 

At the conclusion of the trial, the jury returned a verdict finding that the PA deviated from the accepted standard of care in the treatment of the man, but that such deviation did not proximately cause or contribute to the man’s death. Further, the jury determined that the hospital did not deviate from the accepted standard of care in its treatment of the man.

 

The estate filed a motion for a new trial. The trial court denied the motion.

 

The Supreme Court of Appeals of West Virginia affirmed. The court held that the trial court did not err in prohibiting the estate’s counsel from using the words “rule,” “danger,” and “dangerous”; the trial court did not abuse its discretion when it did not permit the admission into evidence at trial of a copy of the statute, repealed in 2014, governing PAs; the trial court did not abuse its discretion when it did not permit a copy of the hospital’s PA job description to be admitted as a trial exhibit; the trial court did not err in allowing the hospital’s expert in family practice medicine to offer testimony as to the treating radiologist’s impressions of the CT scan; and the trial court did not err in admitting the testimony of the PA’s supervising physician at the hospital regarding his belief that the PA was a careful individual and an outstanding PA and the treatment plan the supervising physician would have developed for the man.

 

The trial court did not err in prohibiting the estate’s counsel from using the words “rule,” “danger,” and “dangerous.” The court concluded that the trial court did not err in prohibiting the estate’s counsel from using certain terms that were potentially confusing and misleading to jurors. The estate’s counsel was not prejudiced and manifest injustice did not result from the trial court’s ruling. The estate’s counsel was afforded the opportunity to present the estate’s arguments and case in a fair and impartial manner, free from arguably confusing or misleading inferences.

 

The trial court did not abuse its discretion when it did not permit the admission into evidence at trial of a copy of the statute, repealed in 2014, governing PA. The court found that, that given the possibility of confusion that may arise for the jury if a copy of the statute was admitted into evidence, it was properly excluded. The court noted that the estate read the relevant portions of the statute into the record and was provided the opportunity to question its expert regarding the statute.

 

The trial court did not abuse its discretion when it did not permit a copy of the hospital’s PA job description to be admitted as a trial exhibit. The court found that the estate was provided the opportunity to question its expert and the PA regarding this job description and was permitted to read portions of the job description into the record.

 

The trial court did not err in allowing the hospital’s expert in family practice medicine to offer testimony as to the treating radiologist’s impressions of the CT scan. The court noted that the trial court, after hearing the arguments of counsel and context of the testimony at issue, found that the hospital’s expert in family practice medicine testified not to what the treating radiologist was thinking, but rather to the expert’s own interpretation of the report issued by the treating radiologist.

 

The trial court did not err in admitting the testimony of the PA’s supervising physician at the hospital regarding the supervising physician’s belief that the PA was a careful individual and an outstanding PA and the treatment plan the supervising physician would have developed for the man. The court found the evidence was admissible. The hospital identified the PA’s supervising physician as an expert witness. Because of the supervising physician’s day-to-day interactions with the PA, the PA’s supervising physician was permitted to testify, not to the PA’s character, but to the PA’s clinical skills and the supervising physician’s direct observations of the PA’s work. In the position as the supervising physician of the PA, the supervising physician’s testimony as to the proposed treatment plan for the man was relevant to the issue of whether the PA was properly supervised by the hospital.

 

The Supreme Court of Appeals of West Virginia affirmed the trial court’s denial of the estate’s motion for a new trial.

 

See: Brown v. Berkeley Family Medicine Associates, Inc., 2017 WL 3821807 (W.Va., September 1, 2017) (not designated for publication).

 

See also Medical Law Perspectives Report: Arthritis Pain and Inflammation: Diagnosis and Treatment Risks

 

See also Medical Law Perspectives Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

 

 

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