Question: Diabetes-related litigation may involve:
A. Patient injuries.
B. Work injuries.
C. Third-party injuries.
D. A and B.
E. A, B, and C.
Answer: E. Many millions of Americans have diabetes, the condition being associated with serious complications and an annual economic burden exceeding $100 billion. The diabetic patient may file personal injury claims, including malpractice allegations, against a doctor for negligent care such as the failure to diagnose and/or treat. Where there is aggravation of a worker’s injury by underlying preexisting diabetes, e.g., a work-acquired wound that ends in an amputation, the employer may face a workers’ compensation claim. And both the patient and nonpatient third parties injured, say in a car accident, may have a cause of action against a doctor for failing to warn that certain medications, such as insulin, can impair driving ability.
Data from the Physician Insurers Association of America (PIAA), a trade organization of malpractice carriers collectively insuring some 60% of U.S. doctors and dentists in private practice, document a total of 906 diabetes-related claims during the 10-year period from 1985 to 1996. Total indemnity paid was close to $27 million. Ophthalmology, internal medicine, and general and family practice physicians were the most commonly affected, frequently for mishaps occurring in the office (Diabetes Care 1998;21:1096-1100).
Liability can attach where there is failure to diagnose or treat diabetes. For example, in Hill v. Stewart (209 So.2d 809 (Miss. 1968)), a physician was found liable for misdiagnosing his patient’s weight loss, polyuria, and polydipsia as multiple sclerosis, and for failing to attend to him for 29 hours after he was hospitalized with diabetic ketoacidosis.
Lawsuits are not uncommon against ophthalmologists and obstetricians for eye and obstetric complications associated with the care of diabetic patients. But all specialists are at risk. In one instance, a radiologist was found liable for failing to take proper precautions in a diabetic patient with postural hypotension who fell off the radiology examining table and sustained injuries.
It is well known that many diabetic patients do not achieve target glycemic control, e.g., ADA’s HbA1c of 7%. In an audit carried out in 2004-2005, 42% of patients had a value of 7.5% or higher. Many factors account for this widespread treatment "failure" despite clear evidence that good control can prevent many of the complications of diabetes.
Where poor control can be blamed on the doctor, a lawsuit may prove successful if there is evidence that the complication, e.g., diabetic retinopathy, would otherwise have been prevented. On the other hand, many if not most patients bear the fault for poor or noncompliance, although this may not necessarily be a successful defense.
For example, in Gray v. Brock (750 S.W.2d 696 (Mo. 1988)), the Missouri state appeals court reversed a lower court’s decision that the patient was 82% contributorily negligent because he delayed treatment for several days and ended up in the hospital with a blood glucose of 1,265 mg/dL. The appeals court held that there was no substantial evidence the patient knew that "his diabetes was out of control," and that the nausea, vomiting, and excessive intake of fluids for several days could be explained by the belief that he (and his wife) had come down with the flu.
The defendant is held to the standard ordinarily expected of his or her specialty, and not to a higher standard. Experts testifying for either side need not be of the same specialty as the defendant, but must be able to testify to that standard expected under the facts of the case.
Thus, in Benison v. Silverman (233 Ill. App.3d 689 (1992)), a general practitioner was found not liable for not promptly hospitalizing a patient with a foot injury that subsequently became gangrenous. The plaintiff’s internist-expert had referenced the wrong standard of care.
Likewise, an internist is to be judged by the standard ordinarily expected of a fellow internist, not of an endocrinologist. In Seitz v. Akron Clinic (557 N.E.2d 1216 (Ohio 1990)), an internist-pulmonologist failed to refer a mild diabetic to a diabetologist. When the patient subsequently developed neuropathy, a lawsuit ensued; but the internist defendant prevailed, because it was not the customary standard for an internist to refer an uncomplicated case to a diabetes specialist.
However, a chiropractor who held himself out as being capable of diagnosing and treating diabetes was held liable for injuries according to the standard of an M.D. physician in Dowell v. Mossberg (355 P.2d 624 (Ore 1960)). In another case, a chiropractor who was treating a diabetic patient for her back problems applied prolonged ultrasound treatments to her sprained ankle, resulting in a burn. The defendant was held liable for failing to exercise the requisite medical care in treating a diabetic foot.