Alaska bill offers immunity when advice is ignored

Physicians say the measure would offer protection from unjustified lawsuits from noncompliant patients. Some lawyers say it would go too far.

By Tanya Albert, AMNews staff. March 22/29, 2004.

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.