Unprotected People #41: Case Closed: PneumococcalVaccine May Be Everyones Resp

liver411

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Issue Number 282 November 19, 2001

Immune Org.



1. Unprotected People #41: "Case Closed: Pneumococcal

    Vaccine May Be Everyone's Responsibility"

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(1 of 1)

November 19, 2001

UNPROTECTED PEOPLE #41: "CASE CLOSED: PNEUMOCOCCAL VACCINE MAY BE EVERYONE'S RESPONSIBILITY"



The following article was written by Ann Lofsky, M.D., and

is used by permission of The Doctors Company





The article tells a tale with two morals for health care

professionals: one about the risks of pneumococcal disease

for splenectomy patients, and one about the risk of any

patient in need of immunization "falling through the

cracks" of a multi-specialist team.



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A patient with a serious medical condition is often treated

by a number of physicians during the course of the illness.

Determining which physician is primarily responsible for

overseeing the patient's care may be difficult--even for the

doctors themselves. If necessary treatment is omitted, it

can become a difficult legal question as well.



A 38-year-old female noted a small mass on the left side of

her neck, and a biopsy revealed mixed cellularity Hodgkin's

disease. She was followed by a medical oncologist who

referred her to our insured radiation oncologist, Dr. R.

After obtaining a negative lymphangiogram, Dr. R.

recommended a course of mantle irradiation. This was

performed over a one-month period. The patient had

excellent results, with shrinking of the neck mass, and she

was classified as Hodgkin's stage IA-IIA in remission.



A CT scan of the pelvis was then ordered to confirm

staging, and it revealed an enlarged uterus. Dr. R.

referred the woman to a gynecologist, and a negative

pregnancy test was obtained. Because of the possibility of

Hodgkin's spread below the diaphragm, Dr. R. considered a

course of radiation to the patient's spleen. Before

beginning therapy, he consulted a prominent authority on

Hodgkin's disease. The Hodgkin's authority expressed

surprise that the patient had not been completely staged

prior to irradiation and recommended an immediate staging

laparotomy and splenectomy followed by additional radiation

or chemotherapy as indicated by the surgical findings. Dr.

R. phoned the woman's medical oncologist to discuss this

plan.





The medical oncologist agreed with the proposed treatment

and said he would provide the patient with a pneumococcal

vaccine injection prior to surgery. Dr. R. informed the

woman of the necessity of staging surgery and referred her

to a general surgeon. When she expressed reluctance to

undergo such an invasive procedure, he wrote to her,

strongly advising she proceed. Surgery was performed and

revealed Hodgkin's involvement of the spleen and periaortic

lymph nodes. A medical oncologist prescribed a course of

chemotherapy, and the patient has remained in remission since

then.



One year after surgery, the patient presented to an

emergency room complaining of chills. Her feet and hands

were dusky and cold. She was ultimately diagnosed with

pneumococcal sepsis, and disseminated intravascular

coagulation and gangrene complicated her extensive hospital

course. Treatment required bilateral below-the-knee

amputations, partial amputation of eight fingers, and

partial amputation of her nose. It was determined that she

had never, in fact, received a prophylactic pneumococcal

vaccine.



WHAT IS THE APPLICABLE STANDARD OF CARE?



Pneumococcal vaccine is routinely given to all persons at

increased risk of serious pneumococcal infections,

including those with immunosuppression, those age 65 or

older, those living in high-risk social situations, and

those with splenectomies. The vaccine has been shown to be

50 to 70 percent effective in preventing invasive

pneumococcal infection in these patients, although the

protection rate for patients with Hodgkin's disease may be

lower. In a deposition, the patient's medical oncologist

was forced to state that he had never before seen a patient

who had undergone a splenectomy without first receiving the

vaccine.



WHOSE RESPONSIBILITY WAS IT TO GIVE THE VACCINE?



All parties agreed that medical oncologists routinely

provide injections of Pneumovax or Pnu-Imune prior to

planned splenectomies. This oncologist argued that when he

had last seen the patient, she had not yet agreed to

surgery. He assumed he would see her again when she had

decided, but he was next contacted after the procedure had

been performed. He assumed someone else had provided the

vaccine by this time. Further complicating matters was the

fact that the patient changed medical oncologists after her

surgery, and the original physician never saw her again.



Plaintiff experts contended that Dr. R. should have given

the vaccine prior to beginning irradiation--the first

immunosuppressive therapy given to this patient. Radiation

oncologists argued this would not routinely be given by a

radiologist, but Dr. R. could have referred the patient

back to her medical oncologist for this purpose. The

ultimate responsibility for oversight of a patient's care

would fall to the primary physician, but in this case it

was difficult to determine who that was.



WHO WAS CAPTAIN OF THE SHIP?





The plaintiff argued that our insured radiation oncologist

had functioned in this case not only as a consultant but

also as a primary director of the patient's care. In a

handout given to his patients, Dr. R. describes himself as

a valuable member of the treatment team, intricately

involved in making diagnostic and therapeutic decisions. In

fact, Dr. R. had ordered diagnostic studies, consulted with

a medical expert, referred the patient to other physicians,

and urged her to go forward with staging surgery--all

functions usually assumed by the primary attending

physician. The plaintiff's contention was that both Dr. R.

and the medical oncologist were acting as "quarterbacks,"

and as such they had fumbled the ball on two occasions:

first in failing to perform the staging laparotomy before

initiating radiation therapy and second in neglecting to

administer the pneumococcal vaccine.



The original treating oncologist conceded liability and

settled out of the case for $1 million. The surgeon,

admitting he never verified whether the vaccine had been

provided, settled his case for $500,000. Finally, the

medical oncologist who directed chemotherapy after the

staging surgery settled for an undisclosed sum, leaving

only Dr. R. remaining as a defendant in this case.



WHAT IS JOINT AND SEVERAL LIABILITY?





Defense attorneys estimated that a jury might place 90

percent of the liability on the medical oncologist and

surgeon, but Dr. R. could be found up to 10 percent

responsible for this patient's injuries. The state of venue

of this case follows the rule of joint and several

liability. Under this doctrine, the plaintiff can opt to

enforce the judgment against one of the defendants alone or

all of them together. As long as any one of the defendants

is found at least partially liable, that party is

potentially on the hook for the entire amount of the

judgment.



By all accounts this patient was an extremely sympathetic

witness. Her injuries were very graphic and severe, yet she

had struggled hard to overcome them and lead a normal life.

She would continue to incur substantial medical and

rehabilitation expenses, setting the stage for an

astronomical jury verdict. With the other parties to this

lawsuit settled out, Dr. R. could potentially be left

holding the bag alone for a multimillion-dollar award.

Although it was possible this case could be defended on the

medical issues alone, Dr. R. agreed to settle the case on

his behalf for $500,000.



FAILURE TO VACCINATE MAY INFLAME JURIES





Malpractice cases for failure to provide pneumococcal

vaccine are not uncommon and can involve serious patient

injury or death. The fact that these outcomes could have

been prevented by a simple, relatively low-risk vaccination

can be inflammatory to juries. Experts in this case opined

that every physician involved in this patient's care was in

a position to review the records and realize that a

potentially lifesaving intervention had been neglected. All

physicians would be well advised to consider whether their

patients qualify for pneumococcal vaccination.

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[ This page was updated by axx on 2001-12-05.23:35:04. ]



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