OUTCOME
A $1,086,612 verdict was returned, with the jury finding Dr. S 25% at fault and the plaintiffs 75% at fault.
COMMENT
A skilled tax accountant will provide guidance on how to claim deductions. Many lawyers listen and advise but do little else. These people sit at a desk and provide advice—that is what they do. Dispensing advice from a seated position is their only stock in store.
By contrast, clinicians are kinetic people. They are on their feet, up and about. They perform workups and surgeries, procedures and treatments. Clinicians are people in motion accustomed to action.
Yet clinicians often forget: Dispensing advice is practicing medicine. They are conditioned to dispense this advice freely, and by freely I mean both casually and without compensation. As a result, clinicians often fail to realize the value and potential liability of the spoken word. Make no mistake: Giving medical advice incurs legal risk. Lawyers know this; how many give free advice while absorbing the risk for that advice? Yeah, I thought so ....
Clinicians can be held legally liable for misinformation as easily as they can for misdiagnosis. The key is detrimental reliance. When a clinician gives a patient incorrect information, there is no legal case. The patient has a legal case if, and only if, he or she relies on that information and is injured (detriment) based on that reliance.
Here, the standard of care required the geneticist to be familiar with Alpers syndrome and accurately convey the risk associated with different courses of action. Like an accountant or attorney, the service sought and tendered is advice. The plaintiff was told that the risk for having another child with Alpers syndrome was “negligible” and made a decision based on that risk assessment.
The risk, however, was not negligible; it was 200 times greater than that in the general population. Relying on the geneticist’s information, the plaintiffs decided to use the father’s sperm and suffered legally compensable injury when their third child was born with the same condition. There was clearly clinician error.
Nevertheless, the jurors found the parents 75% at fault (for attempting to have another child) and the physician 25% at fault. Some states only allow a plaintiff to recover damages if they have no fault at all (pure contributory negligence), while others permit recovery if the plaintiff is 50% or less at fault. A handful of states—including Florida, where this case occurred—allow a plaintiff to recover even if they are 99% at fault (pure comparative negligence). In those cases, the jury determines the damages and the parties’ respective fault percentages, and the plaintiff’s recovery is reduced by that percentage. Here, the physician was responsible for 25% of the $1,086,612 award and thus had to pay $271,653.
In sum: Don’t give “free advice” too freely. >>