Alaska bill offers immunity when advice is ignored

Several months after abdominal surgery, a patient called her surgeon, James O'Malley, MD, at night complaining of pain. She told him she felt bloated and couldn't burp.

Dr. O'Malley, a general surgeon in Anchorage, Alaska, told Vicki Marsingill that he couldn't evaluate her over the phone. He didn't give her an opinion about what might be causing her symptoms. But he told her that because she felt bad enough to call him at night, she should go to the emergency department and he would meet her there.

He gave her that advice several times, and when she asked what doctors in the ED would do, he told her they would likely insert a nasogastric tube. Marsingill then told Dr. O'Malley that she thought she was feeling better and that she thought she could burp. She didn't go to the hospital.

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

That account is found in court records. Marsingill sued Dr. O'Malley in 1995, saying the physician breached his duty to give her enough information to make an informed choice about whether to go to the emergency department. She said he should have told her more about the possible consequences of not going to the ED.

The lawsuit has sparked debate in Alaska over how much information physicians should give patients over the phone and what responsibility patients have to follow their doctors' recommendations. Now it also has inspired legislation.

Alaska lawmakers are hearing debate on a bill that would establish standards for informed consent. It also would make Alaska physicians immune from liability when they advise a patient via telephone, radio, e-mail, videoconference or other electronic means to get further care or evaluation at an office, hospital or other facility, but the patient chooses not to follow that advice. In addition, the measure would cap noneconomic damage awards in medical malpractice suits at $250,000.

Doctors want protection

The lawsuit that Marsingill filed against Dr. O'Malley in 1995 is still winding its way through the legal process and is scheduled to go back before a jury in April.

But the Alaska Supreme Court decision in November 2002 that sent the case back to trial has already changed the way some physicians practice medicine and has prompted them to support the legislation, on which an Alaska House committee heard testimony earlier this month.

The jury in the trial court found that Dr. O'Malley was not liable.

Jurors heard three experts criticize Dr. O'Malley for not telling Marsingill how potentially serious her symptoms were and three experts insist that the doctor provided good care by not engaging in a speculative discussion about what could be wrong and advising Marsingill to go to the ED. The jury decided that Dr. O'Malley gave Marsingill enough information over the phone to make a decision.

But Marsingill challenged the verdict, arguing that the jury had made its decision based on the expert testimony, rather than on Alaska's "reasonable patient" standard.

The Alaska Supreme Court agreed that the jury should have decided the issue from the "standpoint of a reasonable patient." The high court called for a new trial and instructed the lower court judge to tell the jury to decide the case from that perspective.

"The court said the jury could find the doctor negligent," said Jim Jordan, executive director of the Alaska State Medical Assn., which supports the bill. Because of the liability concerns generated by the lawsuit, some physicians have changed the way they handle calls from patients.

"The case created quite a fear and resulted in a number of physicians who stopped taking phone calls and instead put a message on their phone telling patients to go to the emergency department," Jordan said.

Doctors, including Dr. O'Malley, say this development is particularly significant in Alaska, where telemedicine helps physicians care for a patient population that is often sparsely spread across great distances.

And that is why they need a law to protect them when they give advice over the phone and to better define the standards for informed consent, they say. The bill would require a doctor or other health care professional to enable informed consent by disclosing to patients the "information that a skilled health care provider of the same or reasonably similar specialty would disclose under similar circumstances."

Going too far?

As the Legislature's debate continues, some lawyers and patients argue that the measure would give doctors too much protection and that physicians could hold back information. Consequently, they are urging lawmakers to vote against the bill.

"This changes the focus from what a reasonable patient needs to know to what doctors believe a patient should be told," said Richard H. Friedman, Marsingill's attorney.

Friedman also said making physicians immune from liability if they tell their patients via telephone, e-mail or other electronic communication to go to the ED or other facility would be a mistake. Instead of expecting physicians to give patients advice on what the best- or worse-case scenario might be based on the symptoms the patient is describing, the bill would encourage physicians to just tell everyone to go to the ED, he said.

"No one is suggesting that patients should be diagnosed over the phone," Friedman said. "But if a doctor knew it might be potentially serious, what reason is there not to tell a patient that?"