Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Neck Fractures Go Undetected After a Fall
A 64-year-old Alabama man, while dismounting from a dolly at work, lost his footing and fell back-first, landing on his shoulders but also striking the back of his neck and the back of his head. He later reported that he felt his neck pop before he lost consciousness. A coworker found the injured man, and he was quickly evaluated by a nurse in the employer’s medical office. No bumps or bruises were found, and the patient was given acetaminophen and instructed to rest on a heating pad for half an hour or so. He rested for some additional time before returning to work.
When the man arrived home that evening, he went to sleep. When he awoke, he was experiencing significant neck pain and he was taken to an emergency department (ED). He was treated in the ED by Dr. E. X-rays were taken, but they revealed nothing. The plaintiff was discharged after administration of pain medication, a muscle relaxer, and an anti-inflammatory agent.
The following day, the patient had trouble walking and using the bathroom. He was taken to Dr. J., who ordered an MRI that was performed three days after the patient’s accident. The day after the MRI, the patient was unable to get out of bed or move his legs, and his neck pain had worsened. He was taken by ambulance to a hospital, where additional x-rays were taken. Two fractures were found in his neck, which were exerting pressure against the spinal cord. The man was also diagnosed with a bruise on the spine on the back of the neck. He underwent surgery, but his disability persisted.
The plaintiff alleged negligence in the medical providers’ failure to make an earlier diagnosis of the spinal cord injury. The plaintiff claimed that a timely diagnosis and treatment with steroids would have changed his outcome.
The defendants claimed that no negligence was involved and that the plaintiff’s outcome would have been the same, even with earlier treatment. The only defendant at trial was Dr. E.
The patient died in 2008, and his estate was substituted as plaintiff. According to a published report, a defense verdict was returned.
In this defense verdict, it appears that everyone did the right thing, but that technology failed to properly identify the real injury. On the day of the unwitnessed accident, the patient’s physical exam revealed no findings suggestive of spinal injury. Signs and symptoms that developed on the day after the accident were suggestive of spinal injury, but x-rays ordered by the defendant emergency physician failed to reveal any abnormality; the patient’s symptoms could easily have been explained by muscle pain and soreness attributable to his accident. Certainly, in retrospect, everyone wishes that an MRI had been performed on Day 1. —JP
Did Patient Complain of Nuchal Rigidity?
A Massachusetts woman, age 43, presented to her physician’s office complaining of a throbbing headache that had worsened progressively over the previous 48 hours. She was seen by a covering physician to whom she reported symptoms of nausea, vomiting, and photophobia. She had a history of headaches, which she attributed to a previous ear surgery.
The covering physician treated the patient with pain and anti-nausea medications and told her to follow up with her regular primary care provider. The woman went home and fell asleep on her couch. She later died in her sleep. Autopsy findings indicated that the cause of death was bacterial meningitis.
The plaintiff claimed that the question of whether the defendant physician should have considered bacterial meningitis turned on the presence of nuchal rigidity (stiff neck). The defendant conceded that if he had noticed nuchal rigidity, he would have entertained bacterial meningitis in the differential diagnosis. He testified that the decedent was negative for nuchal rigidity but that he had not recorded that finding. The plaintiff presented witnesses who observed that the woman was unable to move her neck during the time of her illness.
A $1.45 million settlement was reached.
This is a classic case of documentation failure. Clearly, not every detail of every exam can be documented in a busy practice, but when a diagnostic decision is made based upon a defining symptom, as it was in this case, then the presence or absence of the defining symptom must be documented. Here, nuchal rigidity is the factor that distinguishes a routine headache from a headache that may be related to bacterial meningitis. Testimony without a record to back it up when it relates to this crucial fact may well have made the difference between a defense and plaintiff’s verdict. —JP
Flu Symptoms or Fibromyalgia Flare-up?
A Kansas woman, age 41, presented to an ED on Christmas Day with cough, congestion, difficulty breathing, and a two-week history of flu-like symptoms (chest tightness and body aches); this, she had attributed to previously diagnosed fibromyalgia.
In the ED, the patient was seen by the defendant physician assistant, who made a diagnosis of sinusitis with a flare-up of her fibromyalgia. Medication was prescribed, and she was discharged after about two hours.
On the way home, the woman experienced cardiac arrest. She was returned to the hospital and pronounced dead less than two hours after discharge.
The plaintiff alleged negligence in the PA’s failure to order an ECG. The defendant denied that an ECG was indicated and claimed that the treatment provided was reasonable.
Plaintiff settled with the hospital for an undisclosed amount prior to trial. A defense verdict was returned.
In this case, we don’t know the reproducibility or magnitude of the patient’s chest pain. Her history of fibromyalgia and flu-like symptoms may have blurred the presentation, which included “chest tightness”—especially considering that fibromyalgia can cause tender points over the anterior chest wall. Further, because 6% to 15% of patients with acute MI will exhibit some degree of reproducible chest tenderness, tenderness on exam can be misleading. Additionally, women with acute coronary syndrome (ACS) commonly present with subtle and nonspecific findings, including dyspnea, fatigue, and weakness. Frank chest pain is often absent.
During litigation, a plaintiff’s attorney will commonly argue that a “five-minute” test (such as an ECG) would have saved a patient. Here, the attorney likely offered expert testimony that ACS presentation can be subtle and atypical and that reasonably prudent clinicians should know this. Jurors familiar with ECGs as quick and noninvasive could reach the conclusion that a complaint of chest tightness in a 41-year-old woman requires that ACS be considered, regardless of her own opinion of the cause. It is important to have an index of suspicion for ACS, even without classic symptoms. It is also important to voice respect for the patient’s self-diagnosis, yet resist our temptation to hastily agree with any patient’s diagnostic assessment. —DML
Abdominal Pain, Rapid Heart Rate After Cardiac Catheterization
In October 2007, a 72-year-old Pennsylvania woman underwent an elective cardiac catheterization in the right femoral artery at the recommendation of Dr. K. Shortly after the procedure, the patient had abdominal pain and back pain, with apparent bleeding in the abdominal cavity. She was kept at the hospital.
Almost two days later, the woman had persistent abdominal pain, a heart rate greater than 120 beats/min, and abdominal tenderness on palpation. Dr. L. was informed of this but did not examine the decedent; instead, he ordered abdominal x-rays, lab work, and administration of morphine.
Four hours later, the woman was found unresponsive. She had experienced cardiac arrest and was placed on a ventilator. In late November, she was transferred to another hospital, where she died about five weeks later. Her death was attributed to multiple organ failure and decreased intestinal blood flow.
The plaintiffs alleged negligence on the part of several defendants, including Dr. K., Dr. L., and the hospital. Dr. L. did not contest causal negligence but argued that other defendants were also at fault.
According to a published account, a jury returned a $5.16 million verdict, including $4.13 million in wrongful death damages and $1.03 million in survival damages. The jury found Dr. L. 95% liable and Dr. K. 5% liable. Defense verdicts were entered for the other defendants.
Under the terms of an agreement into which the plaintiffs had previously entered with the defendants’ insurer, the plaintiffs recovered in the amount of $1.75 million.
This patient was hemodynamically unstable, with a pulse of 120, abdominal pain and tenderness, and an established intra-abdominal bleed. The standard of care required an effort to intervene immediately and stabilize her. Clearly, this did not occur.
Missed bleeding is hard to defend in court. Jurors understand bleeding and expect it to be identified, stopped, and remedied. As clinicians, we know that hemorrhage can be subtle, occult, and difficult to manage. In malpractice cases involving missed hemorrhage, however, plaintiff’s counsel will frequently argue that the clinician exhibited a brazen lack of concern for the patient and will seek a punitive component to damages. Allowing a patient to exsanguinate will inflame a jury, resulting in a heavy damage award—similar to the verdict returned in this case.
Undetected acute bleeding often stems from a misplaced reliance on hemoglobin and hematocrit (H&H) values. In short, H&H values cannot effectively detect acute hemorrhage. As an index of concentration, H&H values will decrease only after time or volume replacement. A skilled plaintiff’s lawyer can vividly demonstrate the fallibility of H&H to detect acute bleeding by emptying half the volume of a pitcher of red liquid in front of the defendant (and the jury) and asking if the concentration changes. As in an exsanguinated decedent’s H&H values in a malpractice case, it will not.
While the facts of this case are silent regarding the patient’s H&H values, it is of paramount importance to understand that the briskly bleeding patient will have a normal or near-normal H&H. During deposition in malpractice case after malpractice case, clinicians are pinned down as having failingly relied on a relatively normal H&H in the setting of rapid hemorrhage.
Hemorrhage must be considered in any patient with hemodynamically unstable vital signs in the setting of trauma, surgery, or coagulopathy—or in any patient with obvious volume loss or apparent unexplained internal fluid accumulation. —DML