David M. Lang, JD, PA-C

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Two Fundoplications Lead to Nerve Damage
A 13-year-old girl underwent surgery for intractable gastroesophageal reflux disease (GERD) in March 1999. The procedure involved the creation of a Nissen fundoplication, which was intended to tighten the esophagus’s lower sphincter. The surgery was performed by pediatrician Dr. S. with assistance from gastroenterologist Dr. N. at a major medical center.

The fundoplication subsequently unraveled, so in December 2000, the physicians recreated it. The patient subsequently developed gastroparesis.

The plaintiff claimed that improper performance of the fundoplications was to blame for the gastroparesis. She subsequently underwent seven surgeries, including the implantation of a pacemaker to control her gastrointestinal functions. The plaintiff also argued that her GERD had not resolved, which impaired her respiration and caused her to require continuous use of supplemental oxygen. The plaintiff also now receives nutrition by tube.

The matter proceeded to trial against both doctors and the medical center. The gastroenterologist, however, was dismissed when evidence showed that the pediatrician, Dr. S., was the primary performer of the fundoplications.

The plaintiff claimed that the failure of the initial fundoplication was due to the use of 3-0 absorbable sutures, when 2-0 nonabsorbable sutures should have been used. The plaintiff claimed that the nonabsorbable sutures were stronger. The plaintiff claimed that during the second fundoplication, a suture was improperly applied, damaging a portion of the vagus nerve. The plaintiff claimed that Dr. S. failed to identify and protect the nerve.

The defendants claimed that while 2-0 sutures are typically used in fundoplications, the 3-0 sutures were acceptable, and that identification and preservation of the vagus nerve was not required. The defendant also maintained that the vagus nerve was not damaged, but that the gastroparesis was due to an unrelated abnormality of the plaintiff’s metabolic process.

OUTCOME
According to a published account, a jury found Dr. S. negligent and awarded $60 million. An appeal was expected.

COMMENT
Medical malpractice awards can be astronomical, particularly when complications so substantially degrade a young patient’s quality of life. That said, damage to the vagus nerve is an accepted risk of a Nissen fundoplication. So how is it that a known risk of a surgery can result in the largest verdict awarded in New York in 2011?

Most lay jurors would recognize that the essential goal of a Nissen fundoplication for GERD is to improve symptoms by making structural changes to the lower esophagus and stomach. Jurors would believe it clearly foreseeable that the surgery would “fall apart” over time and regard the use of smaller dissolvable sutures as obvious error. In fact, the surgeon’s own expert acknowledged that fundoplications are typically secured with 2-0 nonabsorbable sutures and the defendant surgeon utilized 3-0 absorbable sutures. In the eyes of most jurors, this would have essentially served as an admission of liability.

Once the jurors were convinced of “shoddy workmanship” in the first surgery, they would have little trouble finding that the surgeon damaged the vagus nerve in the second. The surgeon defended on the grounds that the standard of care did not require the vagus nerve to be identified and preserved. This argument may have inflamed the jury, who will regard failure to look out for the nerve as wantonly reckless.

Further, the defendant’s claim that the patient’s gastroparesis was due to an “unrelated abnormality of her metabolic process” likely raised the ire of the jurors, who may have considered such an argument an unbelievable attempt to skirt responsibility for the outcome.

The jury may have been incensed that the surgeon chose the wrong size suture, used the wrong material, didn’t even bother to look for important nerves, and then sought to “blame the patient” for the subsequent surgeries, her need for continuous supplemental oxygen, and need for tube feeding.

As a matter of legal strategy, the surgeon’s attorneys should have considered a bifurcated trial (one in which the liability and damages are separated into, essentially, two mini-trials). This is sometimes done in medical malpractice cases because jurors can become overwhelmed with sympathy at the plaintiff’s plight, and then be unable to fairly judge whether or not the clinician made a mistake in the first place.

Second, defense counsel should have considered admitting liability in the first surgery. Why do this? By admitting liability for the first surgery, the defense should have been able to block damaging evidence of the first surgery (suture size and absorbability) from being presented in a trial dealing with the second surgery.

Why is this fair? Because the ultimate issue in this case was whether or not the vagus nerve was injured in the second surgery—not whether better material could have been chosen for the first. By contesting liability for the first surgery, defense counsel permitted the jurors to hear prejudicial evidence of arguably “shoddy workmanship,” which was irrelevant in determining whether or not the vagus nerve was injured during the second surgery.

What lessons can be learned from this substantial verdict? All aspects of a surgical technique should be supported by the standard of care. Where there are choices in operative or procedural technique, ensure that the chosen technique has a foundation in defensible evidence-based medicine. Jurors will expect clinicians to identify and preserve sensitive structures. While inadvertent damage to nearby structures may be a risk inherent in certain procedures, jurors expect the utmost care in protecting those structures.

Candidly, jurors will likely find the clinician responsible for an intra-operative iatrogenic injury. The consent form disclosing “known risks” is necessary, but at time of trial, it will not be an impenetrable shield. Proceed carefully and thoughtfully, with support from evidence-based literature whenever possible. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Two Fundoplications Lead to Nerve Damage
A 13-year-old girl underwent surgery for intractable gastroesophageal reflux disease (GERD) in March 1999. The procedure involved the creation of a Nissen fundoplication, which was intended to tighten the esophagus’s lower sphincter. The surgery was performed by pediatrician Dr. S. with assistance from gastroenterologist Dr. N. at a major medical center.

The fundoplication subsequently unraveled, so in December 2000, the physicians recreated it. The patient subsequently developed gastroparesis.

The plaintiff claimed that improper performance of the fundoplications was to blame for the gastroparesis. She subsequently underwent seven surgeries, including the implantation of a pacemaker to control her gastrointestinal functions. The plaintiff also argued that her GERD had not resolved, which impaired her respiration and caused her to require continuous use of supplemental oxygen. The plaintiff also now receives nutrition by tube.

The matter proceeded to trial against both doctors and the medical center. The gastroenterologist, however, was dismissed when evidence showed that the pediatrician, Dr. S., was the primary performer of the fundoplications.

The plaintiff claimed that the failure of the initial fundoplication was due to the use of 3-0 absorbable sutures, when 2-0 nonabsorbable sutures should have been used. The plaintiff claimed that the nonabsorbable sutures were stronger. The plaintiff claimed that during the second fundoplication, a suture was improperly applied, damaging a portion of the vagus nerve. The plaintiff claimed that Dr. S. failed to identify and protect the nerve.

The defendants claimed that while 2-0 sutures are typically used in fundoplications, the 3-0 sutures were acceptable, and that identification and preservation of the vagus nerve was not required. The defendant also maintained that the vagus nerve was not damaged, but that the gastroparesis was due to an unrelated abnormality of the plaintiff’s metabolic process.

OUTCOME
According to a published account, a jury found Dr. S. negligent and awarded $60 million. An appeal was expected.

COMMENT
Medical malpractice awards can be astronomical, particularly when complications so substantially degrade a young patient’s quality of life. That said, damage to the vagus nerve is an accepted risk of a Nissen fundoplication. So how is it that a known risk of a surgery can result in the largest verdict awarded in New York in 2011?

Most lay jurors would recognize that the essential goal of a Nissen fundoplication for GERD is to improve symptoms by making structural changes to the lower esophagus and stomach. Jurors would believe it clearly foreseeable that the surgery would “fall apart” over time and regard the use of smaller dissolvable sutures as obvious error. In fact, the surgeon’s own expert acknowledged that fundoplications are typically secured with 2-0 nonabsorbable sutures and the defendant surgeon utilized 3-0 absorbable sutures. In the eyes of most jurors, this would have essentially served as an admission of liability.

Once the jurors were convinced of “shoddy workmanship” in the first surgery, they would have little trouble finding that the surgeon damaged the vagus nerve in the second. The surgeon defended on the grounds that the standard of care did not require the vagus nerve to be identified and preserved. This argument may have inflamed the jury, who will regard failure to look out for the nerve as wantonly reckless.

Further, the defendant’s claim that the patient’s gastroparesis was due to an “unrelated abnormality of her metabolic process” likely raised the ire of the jurors, who may have considered such an argument an unbelievable attempt to skirt responsibility for the outcome.

The jury may have been incensed that the surgeon chose the wrong size suture, used the wrong material, didn’t even bother to look for important nerves, and then sought to “blame the patient” for the subsequent surgeries, her need for continuous supplemental oxygen, and need for tube feeding.

As a matter of legal strategy, the surgeon’s attorneys should have considered a bifurcated trial (one in which the liability and damages are separated into, essentially, two mini-trials). This is sometimes done in medical malpractice cases because jurors can become overwhelmed with sympathy at the plaintiff’s plight, and then be unable to fairly judge whether or not the clinician made a mistake in the first place.

Second, defense counsel should have considered admitting liability in the first surgery. Why do this? By admitting liability for the first surgery, the defense should have been able to block damaging evidence of the first surgery (suture size and absorbability) from being presented in a trial dealing with the second surgery.

Why is this fair? Because the ultimate issue in this case was whether or not the vagus nerve was injured in the second surgery—not whether better material could have been chosen for the first. By contesting liability for the first surgery, defense counsel permitted the jurors to hear prejudicial evidence of arguably “shoddy workmanship,” which was irrelevant in determining whether or not the vagus nerve was injured during the second surgery.

What lessons can be learned from this substantial verdict? All aspects of a surgical technique should be supported by the standard of care. Where there are choices in operative or procedural technique, ensure that the chosen technique has a foundation in defensible evidence-based medicine. Jurors will expect clinicians to identify and preserve sensitive structures. While inadvertent damage to nearby structures may be a risk inherent in certain procedures, jurors expect the utmost care in protecting those structures.

Candidly, jurors will likely find the clinician responsible for an intra-operative iatrogenic injury. The consent form disclosing “known risks” is necessary, but at time of trial, it will not be an impenetrable shield. Proceed carefully and thoughtfully, with support from evidence-based literature whenever possible. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Two Fundoplications Lead to Nerve Damage
A 13-year-old girl underwent surgery for intractable gastroesophageal reflux disease (GERD) in March 1999. The procedure involved the creation of a Nissen fundoplication, which was intended to tighten the esophagus’s lower sphincter. The surgery was performed by pediatrician Dr. S. with assistance from gastroenterologist Dr. N. at a major medical center.

The fundoplication subsequently unraveled, so in December 2000, the physicians recreated it. The patient subsequently developed gastroparesis.

The plaintiff claimed that improper performance of the fundoplications was to blame for the gastroparesis. She subsequently underwent seven surgeries, including the implantation of a pacemaker to control her gastrointestinal functions. The plaintiff also argued that her GERD had not resolved, which impaired her respiration and caused her to require continuous use of supplemental oxygen. The plaintiff also now receives nutrition by tube.

The matter proceeded to trial against both doctors and the medical center. The gastroenterologist, however, was dismissed when evidence showed that the pediatrician, Dr. S., was the primary performer of the fundoplications.

The plaintiff claimed that the failure of the initial fundoplication was due to the use of 3-0 absorbable sutures, when 2-0 nonabsorbable sutures should have been used. The plaintiff claimed that the nonabsorbable sutures were stronger. The plaintiff claimed that during the second fundoplication, a suture was improperly applied, damaging a portion of the vagus nerve. The plaintiff claimed that Dr. S. failed to identify and protect the nerve.

The defendants claimed that while 2-0 sutures are typically used in fundoplications, the 3-0 sutures were acceptable, and that identification and preservation of the vagus nerve was not required. The defendant also maintained that the vagus nerve was not damaged, but that the gastroparesis was due to an unrelated abnormality of the plaintiff’s metabolic process.

OUTCOME
According to a published account, a jury found Dr. S. negligent and awarded $60 million. An appeal was expected.

COMMENT
Medical malpractice awards can be astronomical, particularly when complications so substantially degrade a young patient’s quality of life. That said, damage to the vagus nerve is an accepted risk of a Nissen fundoplication. So how is it that a known risk of a surgery can result in the largest verdict awarded in New York in 2011?

Most lay jurors would recognize that the essential goal of a Nissen fundoplication for GERD is to improve symptoms by making structural changes to the lower esophagus and stomach. Jurors would believe it clearly foreseeable that the surgery would “fall apart” over time and regard the use of smaller dissolvable sutures as obvious error. In fact, the surgeon’s own expert acknowledged that fundoplications are typically secured with 2-0 nonabsorbable sutures and the defendant surgeon utilized 3-0 absorbable sutures. In the eyes of most jurors, this would have essentially served as an admission of liability.

Once the jurors were convinced of “shoddy workmanship” in the first surgery, they would have little trouble finding that the surgeon damaged the vagus nerve in the second. The surgeon defended on the grounds that the standard of care did not require the vagus nerve to be identified and preserved. This argument may have inflamed the jury, who will regard failure to look out for the nerve as wantonly reckless.

Further, the defendant’s claim that the patient’s gastroparesis was due to an “unrelated abnormality of her metabolic process” likely raised the ire of the jurors, who may have considered such an argument an unbelievable attempt to skirt responsibility for the outcome.

The jury may have been incensed that the surgeon chose the wrong size suture, used the wrong material, didn’t even bother to look for important nerves, and then sought to “blame the patient” for the subsequent surgeries, her need for continuous supplemental oxygen, and need for tube feeding.

As a matter of legal strategy, the surgeon’s attorneys should have considered a bifurcated trial (one in which the liability and damages are separated into, essentially, two mini-trials). This is sometimes done in medical malpractice cases because jurors can become overwhelmed with sympathy at the plaintiff’s plight, and then be unable to fairly judge whether or not the clinician made a mistake in the first place.

Second, defense counsel should have considered admitting liability in the first surgery. Why do this? By admitting liability for the first surgery, the defense should have been able to block damaging evidence of the first surgery (suture size and absorbability) from being presented in a trial dealing with the second surgery.

Why is this fair? Because the ultimate issue in this case was whether or not the vagus nerve was injured in the second surgery—not whether better material could have been chosen for the first. By contesting liability for the first surgery, defense counsel permitted the jurors to hear prejudicial evidence of arguably “shoddy workmanship,” which was irrelevant in determining whether or not the vagus nerve was injured during the second surgery.

What lessons can be learned from this substantial verdict? All aspects of a surgical technique should be supported by the standard of care. Where there are choices in operative or procedural technique, ensure that the chosen technique has a foundation in defensible evidence-based medicine. Jurors will expect clinicians to identify and preserve sensitive structures. While inadvertent damage to nearby structures may be a risk inherent in certain procedures, jurors expect the utmost care in protecting those structures.

Candidly, jurors will likely find the clinician responsible for an intra-operative iatrogenic injury. The consent form disclosing “known risks” is necessary, but at time of trial, it will not be an impenetrable shield. Proceed carefully and thoughtfully, with support from evidence-based literature whenever possible. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Presenting Complaint Overshadows More Serious Problem
A Florida woman who presented to a walk-in clinic for a respiratory condition had also sustained a puncture wound on her finger from an air-powered paint gun. The defendant physician prescribed an antibiotic but did not order an x-ray.

The patient returned to the clinic two days later with increased pain, swelling, and blackening of the finger. The defendant prescribed two pain medications but did not order an x-ray; nor did he mention follow-up treatment.

Later that day, the woman presented to a hospital emergency department (ED) and subsequently underwent amputation of the distal end of her index finger.

The plaintiff alleged negligence on the physician’s failure to send her to the ED or to provide proper care for her finger injury. The defendants claimed that the plaintiff presented to the clinic for evaluation of a respiratory condition and was prescribed an antibiotic. When the plaintiff had a problem with the first antibiotic, the defendant substituted another. The defendant denied that the plaintiff ever complained of a finger injury.

OUTCOME
According to a published account, a verdict of $241,275 was returned. This included $2,000 to be awarded to the plaintiff’s husband for loss of services.

COMMENT
High-pressure injection injuries are often underestimated, legally risky, and potentially devastating to the patient.

As expected, the hands are most likely to be involved, and grease and paint are the substances most commonly injected. The most common injury sites are the index finger or palm of the nondominant hand, which is injected when the user attempts to clean the gun’s nozzle or to steady the gun with a free hand.

These cases can be catastrophic. Outwardly, the injury appears to be an innocuous puncture wound, but the internal injury is severe. Clinicians unfamiliar with high-pressure injection injuries often treat them as a typical puncture wound, as was done in this case. High-pressure injection injuries require immediate surgical consultation and operative management. Even when competent, prompt surgical management takes place, amputation rates are high.

Jurors find the loss of a limb or a digit compelling and recognize the important life-long consequences of such an injury. Jurors expect clinicians to recognize that paint or grease that fills a finger under high pressure represents a threat to the limb, and they will expect the clinician to act swiftly in an effort to save the digit.

Moreover, such cases are easy for the plaintiff’s attorney to try. Unlike electrolyte disturbances or complicated metabolic derangements, high-pressure injection injuries are easy to understand and will keep the average juror’s attention. The plaintiff’s attorney will offer dramatic testimonial evidence of necrosis and inflammation as the paint is shown to move along the tendon sheath. Damaging intraoperative photographic evidence may be produced, and photographs of the resulting wound are almost certain.

High-pressure injection injuries are limb/digit-threatening. Move quickly to offer the patient the best possible result and minimize your malpractice risk. —DML

Mismanaged Infection in Man With Previous Splenectomy
In Ohio, a 27-year-old man presented to the ED with a temperature of 103°F and other signs and symptoms of infection. He had a history of idiopathic thrombocytopenic purpura (ITP), for which he had previously undergone removal of his spleen. At the ED, he was seen by the defendant emergency physician, Dr. A., who made a diagnosis of flu and obtained a culture.

Dr. A. also called Dr. B., the defendant oncologist/hematologist, for a consult. According to Dr. A., he asked Dr. B. whether antibiotics should be prescribed before the patient was released, and Dr. B. told him antibiotics were not necessary. The man was then discharged.

By the next morning, his symptoms had worsened. He presented to a second ED, where he died as a result of an overwhelming infection.

Plaintiff for the decedent claimed that antibiotics should have been prescribed due to his pre-existing ITP and history of splenectomy. Dr. A. claimed that he had appropriately consulted with Dr. B. and had followed the instructions he was given. Dr. B. acknowledged that he had been called and notified that the decedent was in the ED, but he maintained that he had not been asked for advice about whether to prescribe antibiotics.

OUTCOME
According to a published account, a $750,000 verdict was returned. Dr. B. was found 70% at fault, and Dr. A. was found 30% at fault.

COMMENT
This case involves failure to recognize and treat overwhelming postsplenectomy infection (OPSI). Given the patient’s young age and the lost possibility for a full recovery, the jury’s verdict is restrained and probably reflects a relatively conservative jury pool.

Asplenic patients are usually aware that they do not have a spleen, but they may not recognize their associated risk for serious infection. The fact of the matter is that asplenic patients are immunocompromised. When an asplenic patient presents with a febrile illness that is consistent with OPSI, this is a true medical emergency. These patients must undergo a vigorous workup and expeditious administration of antibiotics to offer the best chance for survival. Even with appropriate antibiotic treatment and supportive therapies, mortality associated with OPSI ranges between 50% and 80%.

In this case, the emergency physician obtained a hematology/oncology consultation. There is a dispute between the defendant physicians as to whether antibiotics were recommended or even discussed. It is unclear from the record whether or not the emergency physician’s clinical note includes such a discussion. The jury apportioned the majority of the liability to the hematologist but still found the emergency physician negligent.

Conflict between clinicians or departments can get testy in the clinical record; don’t let that happen. An otherwise defensible record of care can become a nightmare for defense counsel when an interpersonal or interdepartmental conflict is played out in the clinical record. As with personal conflict, defensive addendums to a patient’s record can be damaging. Jurors generally reward “finger pointing” between medical professionals with a verdict for the plaintiff, even when the care itself may be defensible. Regularly held peer review offers clinicians an opportunity to discuss difficult cases without fearing that those discussions will be used as evidence. A formal peer review committee is the exclusive and proper outlet to discuss challenging clinical cases.

Appropriate care for our patients is the ultimate necessity. It can be tricky for a clinician seeking a consultation to challenge the consultant’s recommendation. When confronted with a recommendation that leaves you (the referring clinician) with “heartburn,” it may be helpful for you to restate your misgivings affirmatively—for example, “My concern with that approach is ___,” then state the risks in the gravest terms the situation will allow. Make your preferred course of action apparent: “Honestly, I’d like to admit the patient because of ____.”

If you remain uneasy, seek another colleague’s opinion. Record the substance of the consultation, concerns, and responses fully, accurately but dispassionately, in the patient’s record.

Make sure to give the consultant all the clinical information available; and if you are the consultant, be sure you have received all available information. Treat the consultation formally and with your full attention. The jury will expect the consultant to be fully involved in caring for the patient.

Here, if the emergency physician did not agree with the hematologist, it would have been reasonable for him to obtain a second opinion or to admit the patient and begin empiric antibiotic treatment. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Presenting Complaint Overshadows More Serious Problem
A Florida woman who presented to a walk-in clinic for a respiratory condition had also sustained a puncture wound on her finger from an air-powered paint gun. The defendant physician prescribed an antibiotic but did not order an x-ray.

The patient returned to the clinic two days later with increased pain, swelling, and blackening of the finger. The defendant prescribed two pain medications but did not order an x-ray; nor did he mention follow-up treatment.

Later that day, the woman presented to a hospital emergency department (ED) and subsequently underwent amputation of the distal end of her index finger.

The plaintiff alleged negligence on the physician’s failure to send her to the ED or to provide proper care for her finger injury. The defendants claimed that the plaintiff presented to the clinic for evaluation of a respiratory condition and was prescribed an antibiotic. When the plaintiff had a problem with the first antibiotic, the defendant substituted another. The defendant denied that the plaintiff ever complained of a finger injury.

OUTCOME
According to a published account, a verdict of $241,275 was returned. This included $2,000 to be awarded to the plaintiff’s husband for loss of services.

COMMENT
High-pressure injection injuries are often underestimated, legally risky, and potentially devastating to the patient.

As expected, the hands are most likely to be involved, and grease and paint are the substances most commonly injected. The most common injury sites are the index finger or palm of the nondominant hand, which is injected when the user attempts to clean the gun’s nozzle or to steady the gun with a free hand.

These cases can be catastrophic. Outwardly, the injury appears to be an innocuous puncture wound, but the internal injury is severe. Clinicians unfamiliar with high-pressure injection injuries often treat them as a typical puncture wound, as was done in this case. High-pressure injection injuries require immediate surgical consultation and operative management. Even when competent, prompt surgical management takes place, amputation rates are high.

Jurors find the loss of a limb or a digit compelling and recognize the important life-long consequences of such an injury. Jurors expect clinicians to recognize that paint or grease that fills a finger under high pressure represents a threat to the limb, and they will expect the clinician to act swiftly in an effort to save the digit.

Moreover, such cases are easy for the plaintiff’s attorney to try. Unlike electrolyte disturbances or complicated metabolic derangements, high-pressure injection injuries are easy to understand and will keep the average juror’s attention. The plaintiff’s attorney will offer dramatic testimonial evidence of necrosis and inflammation as the paint is shown to move along the tendon sheath. Damaging intraoperative photographic evidence may be produced, and photographs of the resulting wound are almost certain.

High-pressure injection injuries are limb/digit-threatening. Move quickly to offer the patient the best possible result and minimize your malpractice risk. —DML

Mismanaged Infection in Man With Previous Splenectomy
In Ohio, a 27-year-old man presented to the ED with a temperature of 103°F and other signs and symptoms of infection. He had a history of idiopathic thrombocytopenic purpura (ITP), for which he had previously undergone removal of his spleen. At the ED, he was seen by the defendant emergency physician, Dr. A., who made a diagnosis of flu and obtained a culture.

Dr. A. also called Dr. B., the defendant oncologist/hematologist, for a consult. According to Dr. A., he asked Dr. B. whether antibiotics should be prescribed before the patient was released, and Dr. B. told him antibiotics were not necessary. The man was then discharged.

By the next morning, his symptoms had worsened. He presented to a second ED, where he died as a result of an overwhelming infection.

Plaintiff for the decedent claimed that antibiotics should have been prescribed due to his pre-existing ITP and history of splenectomy. Dr. A. claimed that he had appropriately consulted with Dr. B. and had followed the instructions he was given. Dr. B. acknowledged that he had been called and notified that the decedent was in the ED, but he maintained that he had not been asked for advice about whether to prescribe antibiotics.

OUTCOME
According to a published account, a $750,000 verdict was returned. Dr. B. was found 70% at fault, and Dr. A. was found 30% at fault.

COMMENT
This case involves failure to recognize and treat overwhelming postsplenectomy infection (OPSI). Given the patient’s young age and the lost possibility for a full recovery, the jury’s verdict is restrained and probably reflects a relatively conservative jury pool.

Asplenic patients are usually aware that they do not have a spleen, but they may not recognize their associated risk for serious infection. The fact of the matter is that asplenic patients are immunocompromised. When an asplenic patient presents with a febrile illness that is consistent with OPSI, this is a true medical emergency. These patients must undergo a vigorous workup and expeditious administration of antibiotics to offer the best chance for survival. Even with appropriate antibiotic treatment and supportive therapies, mortality associated with OPSI ranges between 50% and 80%.

In this case, the emergency physician obtained a hematology/oncology consultation. There is a dispute between the defendant physicians as to whether antibiotics were recommended or even discussed. It is unclear from the record whether or not the emergency physician’s clinical note includes such a discussion. The jury apportioned the majority of the liability to the hematologist but still found the emergency physician negligent.

Conflict between clinicians or departments can get testy in the clinical record; don’t let that happen. An otherwise defensible record of care can become a nightmare for defense counsel when an interpersonal or interdepartmental conflict is played out in the clinical record. As with personal conflict, defensive addendums to a patient’s record can be damaging. Jurors generally reward “finger pointing” between medical professionals with a verdict for the plaintiff, even when the care itself may be defensible. Regularly held peer review offers clinicians an opportunity to discuss difficult cases without fearing that those discussions will be used as evidence. A formal peer review committee is the exclusive and proper outlet to discuss challenging clinical cases.

Appropriate care for our patients is the ultimate necessity. It can be tricky for a clinician seeking a consultation to challenge the consultant’s recommendation. When confronted with a recommendation that leaves you (the referring clinician) with “heartburn,” it may be helpful for you to restate your misgivings affirmatively—for example, “My concern with that approach is ___,” then state the risks in the gravest terms the situation will allow. Make your preferred course of action apparent: “Honestly, I’d like to admit the patient because of ____.”

If you remain uneasy, seek another colleague’s opinion. Record the substance of the consultation, concerns, and responses fully, accurately but dispassionately, in the patient’s record.

Make sure to give the consultant all the clinical information available; and if you are the consultant, be sure you have received all available information. Treat the consultation formally and with your full attention. The jury will expect the consultant to be fully involved in caring for the patient.

Here, if the emergency physician did not agree with the hematologist, it would have been reasonable for him to obtain a second opinion or to admit the patient and begin empiric antibiotic treatment. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Presenting Complaint Overshadows More Serious Problem
A Florida woman who presented to a walk-in clinic for a respiratory condition had also sustained a puncture wound on her finger from an air-powered paint gun. The defendant physician prescribed an antibiotic but did not order an x-ray.

The patient returned to the clinic two days later with increased pain, swelling, and blackening of the finger. The defendant prescribed two pain medications but did not order an x-ray; nor did he mention follow-up treatment.

Later that day, the woman presented to a hospital emergency department (ED) and subsequently underwent amputation of the distal end of her index finger.

The plaintiff alleged negligence on the physician’s failure to send her to the ED or to provide proper care for her finger injury. The defendants claimed that the plaintiff presented to the clinic for evaluation of a respiratory condition and was prescribed an antibiotic. When the plaintiff had a problem with the first antibiotic, the defendant substituted another. The defendant denied that the plaintiff ever complained of a finger injury.

OUTCOME
According to a published account, a verdict of $241,275 was returned. This included $2,000 to be awarded to the plaintiff’s husband for loss of services.

COMMENT
High-pressure injection injuries are often underestimated, legally risky, and potentially devastating to the patient.

As expected, the hands are most likely to be involved, and grease and paint are the substances most commonly injected. The most common injury sites are the index finger or palm of the nondominant hand, which is injected when the user attempts to clean the gun’s nozzle or to steady the gun with a free hand.

These cases can be catastrophic. Outwardly, the injury appears to be an innocuous puncture wound, but the internal injury is severe. Clinicians unfamiliar with high-pressure injection injuries often treat them as a typical puncture wound, as was done in this case. High-pressure injection injuries require immediate surgical consultation and operative management. Even when competent, prompt surgical management takes place, amputation rates are high.

Jurors find the loss of a limb or a digit compelling and recognize the important life-long consequences of such an injury. Jurors expect clinicians to recognize that paint or grease that fills a finger under high pressure represents a threat to the limb, and they will expect the clinician to act swiftly in an effort to save the digit.

Moreover, such cases are easy for the plaintiff’s attorney to try. Unlike electrolyte disturbances or complicated metabolic derangements, high-pressure injection injuries are easy to understand and will keep the average juror’s attention. The plaintiff’s attorney will offer dramatic testimonial evidence of necrosis and inflammation as the paint is shown to move along the tendon sheath. Damaging intraoperative photographic evidence may be produced, and photographs of the resulting wound are almost certain.

High-pressure injection injuries are limb/digit-threatening. Move quickly to offer the patient the best possible result and minimize your malpractice risk. —DML

Mismanaged Infection in Man With Previous Splenectomy
In Ohio, a 27-year-old man presented to the ED with a temperature of 103°F and other signs and symptoms of infection. He had a history of idiopathic thrombocytopenic purpura (ITP), for which he had previously undergone removal of his spleen. At the ED, he was seen by the defendant emergency physician, Dr. A., who made a diagnosis of flu and obtained a culture.

Dr. A. also called Dr. B., the defendant oncologist/hematologist, for a consult. According to Dr. A., he asked Dr. B. whether antibiotics should be prescribed before the patient was released, and Dr. B. told him antibiotics were not necessary. The man was then discharged.

By the next morning, his symptoms had worsened. He presented to a second ED, where he died as a result of an overwhelming infection.

Plaintiff for the decedent claimed that antibiotics should have been prescribed due to his pre-existing ITP and history of splenectomy. Dr. A. claimed that he had appropriately consulted with Dr. B. and had followed the instructions he was given. Dr. B. acknowledged that he had been called and notified that the decedent was in the ED, but he maintained that he had not been asked for advice about whether to prescribe antibiotics.

OUTCOME
According to a published account, a $750,000 verdict was returned. Dr. B. was found 70% at fault, and Dr. A. was found 30% at fault.

COMMENT
This case involves failure to recognize and treat overwhelming postsplenectomy infection (OPSI). Given the patient’s young age and the lost possibility for a full recovery, the jury’s verdict is restrained and probably reflects a relatively conservative jury pool.

Asplenic patients are usually aware that they do not have a spleen, but they may not recognize their associated risk for serious infection. The fact of the matter is that asplenic patients are immunocompromised. When an asplenic patient presents with a febrile illness that is consistent with OPSI, this is a true medical emergency. These patients must undergo a vigorous workup and expeditious administration of antibiotics to offer the best chance for survival. Even with appropriate antibiotic treatment and supportive therapies, mortality associated with OPSI ranges between 50% and 80%.

In this case, the emergency physician obtained a hematology/oncology consultation. There is a dispute between the defendant physicians as to whether antibiotics were recommended or even discussed. It is unclear from the record whether or not the emergency physician’s clinical note includes such a discussion. The jury apportioned the majority of the liability to the hematologist but still found the emergency physician negligent.

Conflict between clinicians or departments can get testy in the clinical record; don’t let that happen. An otherwise defensible record of care can become a nightmare for defense counsel when an interpersonal or interdepartmental conflict is played out in the clinical record. As with personal conflict, defensive addendums to a patient’s record can be damaging. Jurors generally reward “finger pointing” between medical professionals with a verdict for the plaintiff, even when the care itself may be defensible. Regularly held peer review offers clinicians an opportunity to discuss difficult cases without fearing that those discussions will be used as evidence. A formal peer review committee is the exclusive and proper outlet to discuss challenging clinical cases.

Appropriate care for our patients is the ultimate necessity. It can be tricky for a clinician seeking a consultation to challenge the consultant’s recommendation. When confronted with a recommendation that leaves you (the referring clinician) with “heartburn,” it may be helpful for you to restate your misgivings affirmatively—for example, “My concern with that approach is ___,” then state the risks in the gravest terms the situation will allow. Make your preferred course of action apparent: “Honestly, I’d like to admit the patient because of ____.”

If you remain uneasy, seek another colleague’s opinion. Record the substance of the consultation, concerns, and responses fully, accurately but dispassionately, in the patient’s record.

Make sure to give the consultant all the clinical information available; and if you are the consultant, be sure you have received all available information. Treat the consultation formally and with your full attention. The jury will expect the consultant to be fully involved in caring for the patient.

Here, if the emergency physician did not agree with the hematologist, it would have been reasonable for him to obtain a second opinion or to admit the patient and begin empiric antibiotic treatment. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

A Michigan woman, age 37, presented to a family medical center complaining of lower abdominal pain, gas, constipation, and occasional diarrhea of one month’s duration; she was menstruating at the time of this visit. The woman was evaluated by a physician assistant, who noted no pain on palpation. The PA made a diagnosis of irritable bowel syndrome.

Six days later, the plaintiff went to a hospital-based urgent care clinic with complaints of fatigue and nausea after meals for the previous 10 days. She was diagnosed with acute gastroenteritis and prescribed anti-nausea medication.

Four days later, the plaintiff went to an emergency department complaining of intermittent abdominal pain for the previous two weeks and irregular vaginal bleeding. When a urinary pregnancy test was returned with positive results, ultrasound was performed, revealing an ectopic pregnancy. Emergent surgery was performed, during which the patient’s right fallopian tube was removed.

The plaintiff claimed that a pregnancy test should have been performed at her earlier visits. The plaintiff claimed that any woman of childbearing age with abdominal complaints should be tested for pregnancy. A positive pregnancy test, the patient argued, would have led to an earlier diagnosis of her ectopic pregnancy, allowing her to be treated with methotrexate rather than surgery.

The defendants argued that the plaintiff’s complaints were nonspecific and that the diagnoses made were reasonable. The defendants also argued that the plaintiff would have chosen surgery as a treatment even if she had been given the option of medical intervention.

OUTCOME
According to a published account, a defense verdict was returned, and the defendants were awarded costs of $21,716.

COMMENT
This case illustrates the need to obtain a pregnancy test in all cases of abdominal or pelvic pain in women of childbearing age, as well as severe lower back pain or flank pain—even with apparently noncontributory symptoms. Establishing pregnancy status is often required before radiographic or pharmaceutical intervention as well.

It may be tempting to forego a formal pregnancy test when a patient states that she is taking birth control, has not engaged in sexual activity, or is menstruating—as was the case here. Don’t risk the disastrous consequences of a missed, ruptured ectopic pregnancy, or of a possible teratogenic therapeutic intervention by failing to obtain a pregnancy test. As in this case, the plaintiff, her attorney, and her expert will allege that the standard of care requires a determination of pregnancy status.

It could become a thorny issue, should a patient refuse a pregnancy test and insist that the clinician accept as fact her representation that she is not pregnant. In such cases, it is vital to respect the patient’s right to self-determination by validating your recognition that she is ultimately in charge of her body and her health care—while at the same time informing her that the standard of care requires conclusive objective proof that a similarly situated patient is not pregnant in order to proceed safely.

If this has been tactfully and thoughtfully explained but the patient insists on refusing the test, document her refusal with a witness present. Explain all the risks of refusal in clear terms (eg, missed ectopic pregnancy: loss of future fertility, internal bleeding, death) and document that the patient understands—again, with a witness.

In a woman of childbearing age who needs a medication with potential teratogenic effects but refuses the indicated pregnancy test, try to identify a second, safer choice—provided such an option is reasonable. —DML   

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

A Michigan woman, age 37, presented to a family medical center complaining of lower abdominal pain, gas, constipation, and occasional diarrhea of one month’s duration; she was menstruating at the time of this visit. The woman was evaluated by a physician assistant, who noted no pain on palpation. The PA made a diagnosis of irritable bowel syndrome.

Six days later, the plaintiff went to a hospital-based urgent care clinic with complaints of fatigue and nausea after meals for the previous 10 days. She was diagnosed with acute gastroenteritis and prescribed anti-nausea medication.

Four days later, the plaintiff went to an emergency department complaining of intermittent abdominal pain for the previous two weeks and irregular vaginal bleeding. When a urinary pregnancy test was returned with positive results, ultrasound was performed, revealing an ectopic pregnancy. Emergent surgery was performed, during which the patient’s right fallopian tube was removed.

The plaintiff claimed that a pregnancy test should have been performed at her earlier visits. The plaintiff claimed that any woman of childbearing age with abdominal complaints should be tested for pregnancy. A positive pregnancy test, the patient argued, would have led to an earlier diagnosis of her ectopic pregnancy, allowing her to be treated with methotrexate rather than surgery.

The defendants argued that the plaintiff’s complaints were nonspecific and that the diagnoses made were reasonable. The defendants also argued that the plaintiff would have chosen surgery as a treatment even if she had been given the option of medical intervention.

OUTCOME
According to a published account, a defense verdict was returned, and the defendants were awarded costs of $21,716.

COMMENT
This case illustrates the need to obtain a pregnancy test in all cases of abdominal or pelvic pain in women of childbearing age, as well as severe lower back pain or flank pain—even with apparently noncontributory symptoms. Establishing pregnancy status is often required before radiographic or pharmaceutical intervention as well.

It may be tempting to forego a formal pregnancy test when a patient states that she is taking birth control, has not engaged in sexual activity, or is menstruating—as was the case here. Don’t risk the disastrous consequences of a missed, ruptured ectopic pregnancy, or of a possible teratogenic therapeutic intervention by failing to obtain a pregnancy test. As in this case, the plaintiff, her attorney, and her expert will allege that the standard of care requires a determination of pregnancy status.

It could become a thorny issue, should a patient refuse a pregnancy test and insist that the clinician accept as fact her representation that she is not pregnant. In such cases, it is vital to respect the patient’s right to self-determination by validating your recognition that she is ultimately in charge of her body and her health care—while at the same time informing her that the standard of care requires conclusive objective proof that a similarly situated patient is not pregnant in order to proceed safely.

If this has been tactfully and thoughtfully explained but the patient insists on refusing the test, document her refusal with a witness present. Explain all the risks of refusal in clear terms (eg, missed ectopic pregnancy: loss of future fertility, internal bleeding, death) and document that the patient understands—again, with a witness.

In a woman of childbearing age who needs a medication with potential teratogenic effects but refuses the indicated pregnancy test, try to identify a second, safer choice—provided such an option is reasonable. —DML   

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

A Michigan woman, age 37, presented to a family medical center complaining of lower abdominal pain, gas, constipation, and occasional diarrhea of one month’s duration; she was menstruating at the time of this visit. The woman was evaluated by a physician assistant, who noted no pain on palpation. The PA made a diagnosis of irritable bowel syndrome.

Six days later, the plaintiff went to a hospital-based urgent care clinic with complaints of fatigue and nausea after meals for the previous 10 days. She was diagnosed with acute gastroenteritis and prescribed anti-nausea medication.

Four days later, the plaintiff went to an emergency department complaining of intermittent abdominal pain for the previous two weeks and irregular vaginal bleeding. When a urinary pregnancy test was returned with positive results, ultrasound was performed, revealing an ectopic pregnancy. Emergent surgery was performed, during which the patient’s right fallopian tube was removed.

The plaintiff claimed that a pregnancy test should have been performed at her earlier visits. The plaintiff claimed that any woman of childbearing age with abdominal complaints should be tested for pregnancy. A positive pregnancy test, the patient argued, would have led to an earlier diagnosis of her ectopic pregnancy, allowing her to be treated with methotrexate rather than surgery.

The defendants argued that the plaintiff’s complaints were nonspecific and that the diagnoses made were reasonable. The defendants also argued that the plaintiff would have chosen surgery as a treatment even if she had been given the option of medical intervention.

OUTCOME
According to a published account, a defense verdict was returned, and the defendants were awarded costs of $21,716.

COMMENT
This case illustrates the need to obtain a pregnancy test in all cases of abdominal or pelvic pain in women of childbearing age, as well as severe lower back pain or flank pain—even with apparently noncontributory symptoms. Establishing pregnancy status is often required before radiographic or pharmaceutical intervention as well.

It may be tempting to forego a formal pregnancy test when a patient states that she is taking birth control, has not engaged in sexual activity, or is menstruating—as was the case here. Don’t risk the disastrous consequences of a missed, ruptured ectopic pregnancy, or of a possible teratogenic therapeutic intervention by failing to obtain a pregnancy test. As in this case, the plaintiff, her attorney, and her expert will allege that the standard of care requires a determination of pregnancy status.

It could become a thorny issue, should a patient refuse a pregnancy test and insist that the clinician accept as fact her representation that she is not pregnant. In such cases, it is vital to respect the patient’s right to self-determination by validating your recognition that she is ultimately in charge of her body and her health care—while at the same time informing her that the standard of care requires conclusive objective proof that a similarly situated patient is not pregnant in order to proceed safely.

If this has been tactfully and thoughtfully explained but the patient insists on refusing the test, document her refusal with a witness present. Explain all the risks of refusal in clear terms (eg, missed ectopic pregnancy: loss of future fertility, internal bleeding, death) and document that the patient understands—again, with a witness.

In a woman of childbearing age who needs a medication with potential teratogenic effects but refuses the indicated pregnancy test, try to identify a second, safer choice—provided such an option is reasonable. —DML   

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Pseudo–Brain Tumor Impairs Woman’s Vision
In Kentucky, a 22-year-old woman went to the ED with a 10-day history of painful headache. According to the patient, she told the defendant emergency physician, Dr. W., that she had been having vision problems. Dr. W. made a diagnosis of stress and advised the patient to rest. When the woman’s condition had not improved a few weeks later, she visited her primary care physician, Dr. C. She was given a diagnosis of migraine.

During the succeeding month, the patient’s vision worsened. Ultimately, she was diagnosed with a pseudo–brain tumor. Despite aggressive intervention, she experienced significant vision loss.

The plaintiff alleged negligence in her physicians’ failure to make a timely diagnosis. She claimed that CT or fundoscopy should have been performed in the ED and also alleged negligence in Dr. C.’s diagnosis of migraine.

Dr. C. settled prior to trial. Dr. W. claimed that the plaintiff’s presentation and complaints made his treatment reasonable and that in the absence of trauma to the eye, an emergency physician would not normally check for visual acuity. The defendant also contended that the plaintiff’s condition was rare and would have been difficult to diagnose. The defendant also blamed the plaintiff for her delay in seeking follow-up care.

OUTCOME
A jury found the defendant emergency physician 30% at fault, the settling physician 50% at fault, and the plaintiff 20% at fault. The verdict totaled $685,000, including a $205,500 judgment against Dr. W.

COMMENT
Primary care providers see nontraumatic headaches every day. Though usually self-limiting and benign, headaches can also be the only symptom of a serious or fatal condition, including subarachnoid hemorrhage (SAH), meningitis, or giant-cell arteritis. Additionally problematic is the patient with previous headache who presents with headache of a different character or new symptomatology.

Pseudotumor cerebri, or idiopathic intracranial hypertension (IIH), presents subtly but may end with progressive optic atrophy and blindness. Despite its elusive etiology, IIH develops more commonly among women of childbearing age with an elevated BMI. Its nonspecific signs and symptoms include headache and vomiting. More specific clues include pulsatile tinnitus and horizontal diplopia. Progressive loss of peripheral vision, transient visual dimming or blackout in one or both eyes, and blurring and distortion of central vision can occur.

Papilledema is generally present, with venous engorgement, loss of venous pulsation, hemorrhages over or adjacent to the optic disc, elevation or blurring of disc margins, and retinal striae. Performing fundoscopic examination correctly can be challenging, and papilledema can be missed. For those who haven’t seen clinical evidence of papilledema in some time, reviewing retinal findings is encouraged.

Real-world challenges can hinder examination: well-meaning staff who dim the lights to near-blackout conditions; inaccessibility to the patient cocooned in blankets; the chronic pain patient who resists examination, insisting, “I’m just here for my pain medicine.” Don’t let impediments like these hinder your examination.

The physical exam must include neurologic testing—cranial nerve and fundoscopic examination, ocular motility, and visual field testing. It is important to recognize and validate the patient’s pain, but don’t skimp on the exam to spare them discomfort.

To rule out intraocular pathology, visual acuity should be tested. Acuity testing provides objective data and may reveal visual symptoms, such as scotoma or blurred vision. Visual acuity should be considered a vital sign for patients presenting with primary ocular complaints or headache.

Neuroimaging is generally indicated in headache with new abnormal neurologic findings (eg, altered metal status or cognitive function or focal deficit); a new sudden-onset severe headache; or a new headache in any HIV-positive patient. When SAH is a possibility (“thunderclap” headache or “worst in life” with swift intensity), neuroimaging, followed by cerebrospinal fluid analysis and observation, is required.

In this case, fundoscopy and visual field testing were warranted, and acuity testing would be reasonable. The patient’s headache was new, and if the symptoms were severe or if papilledema or visual field defects were discovered, neuroimaging was indicated.

Using “stress” as a diagnostic term may later be brandished by a plaintiff’s attorney as a sign that a patient with organic disease was not taken seriously.

Lastly, patients with a diagnosis of tension headache should be instructed to return if other symptoms arise or the headache changes or worsens—all documented in the patient’s record.—DML           

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Pseudo–Brain Tumor Impairs Woman’s Vision
In Kentucky, a 22-year-old woman went to the ED with a 10-day history of painful headache. According to the patient, she told the defendant emergency physician, Dr. W., that she had been having vision problems. Dr. W. made a diagnosis of stress and advised the patient to rest. When the woman’s condition had not improved a few weeks later, she visited her primary care physician, Dr. C. She was given a diagnosis of migraine.

During the succeeding month, the patient’s vision worsened. Ultimately, she was diagnosed with a pseudo–brain tumor. Despite aggressive intervention, she experienced significant vision loss.

The plaintiff alleged negligence in her physicians’ failure to make a timely diagnosis. She claimed that CT or fundoscopy should have been performed in the ED and also alleged negligence in Dr. C.’s diagnosis of migraine.

Dr. C. settled prior to trial. Dr. W. claimed that the plaintiff’s presentation and complaints made his treatment reasonable and that in the absence of trauma to the eye, an emergency physician would not normally check for visual acuity. The defendant also contended that the plaintiff’s condition was rare and would have been difficult to diagnose. The defendant also blamed the plaintiff for her delay in seeking follow-up care.

OUTCOME
A jury found the defendant emergency physician 30% at fault, the settling physician 50% at fault, and the plaintiff 20% at fault. The verdict totaled $685,000, including a $205,500 judgment against Dr. W.

COMMENT
Primary care providers see nontraumatic headaches every day. Though usually self-limiting and benign, headaches can also be the only symptom of a serious or fatal condition, including subarachnoid hemorrhage (SAH), meningitis, or giant-cell arteritis. Additionally problematic is the patient with previous headache who presents with headache of a different character or new symptomatology.

Pseudotumor cerebri, or idiopathic intracranial hypertension (IIH), presents subtly but may end with progressive optic atrophy and blindness. Despite its elusive etiology, IIH develops more commonly among women of childbearing age with an elevated BMI. Its nonspecific signs and symptoms include headache and vomiting. More specific clues include pulsatile tinnitus and horizontal diplopia. Progressive loss of peripheral vision, transient visual dimming or blackout in one or both eyes, and blurring and distortion of central vision can occur.

Papilledema is generally present, with venous engorgement, loss of venous pulsation, hemorrhages over or adjacent to the optic disc, elevation or blurring of disc margins, and retinal striae. Performing fundoscopic examination correctly can be challenging, and papilledema can be missed. For those who haven’t seen clinical evidence of papilledema in some time, reviewing retinal findings is encouraged.

Real-world challenges can hinder examination: well-meaning staff who dim the lights to near-blackout conditions; inaccessibility to the patient cocooned in blankets; the chronic pain patient who resists examination, insisting, “I’m just here for my pain medicine.” Don’t let impediments like these hinder your examination.

The physical exam must include neurologic testing—cranial nerve and fundoscopic examination, ocular motility, and visual field testing. It is important to recognize and validate the patient’s pain, but don’t skimp on the exam to spare them discomfort.

To rule out intraocular pathology, visual acuity should be tested. Acuity testing provides objective data and may reveal visual symptoms, such as scotoma or blurred vision. Visual acuity should be considered a vital sign for patients presenting with primary ocular complaints or headache.

Neuroimaging is generally indicated in headache with new abnormal neurologic findings (eg, altered metal status or cognitive function or focal deficit); a new sudden-onset severe headache; or a new headache in any HIV-positive patient. When SAH is a possibility (“thunderclap” headache or “worst in life” with swift intensity), neuroimaging, followed by cerebrospinal fluid analysis and observation, is required.

In this case, fundoscopy and visual field testing were warranted, and acuity testing would be reasonable. The patient’s headache was new, and if the symptoms were severe or if papilledema or visual field defects were discovered, neuroimaging was indicated.

Using “stress” as a diagnostic term may later be brandished by a plaintiff’s attorney as a sign that a patient with organic disease was not taken seriously.

Lastly, patients with a diagnosis of tension headache should be instructed to return if other symptoms arise or the headache changes or worsens—all documented in the patient’s record.—DML           

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Pseudo–Brain Tumor Impairs Woman’s Vision
In Kentucky, a 22-year-old woman went to the ED with a 10-day history of painful headache. According to the patient, she told the defendant emergency physician, Dr. W., that she had been having vision problems. Dr. W. made a diagnosis of stress and advised the patient to rest. When the woman’s condition had not improved a few weeks later, she visited her primary care physician, Dr. C. She was given a diagnosis of migraine.

During the succeeding month, the patient’s vision worsened. Ultimately, she was diagnosed with a pseudo–brain tumor. Despite aggressive intervention, she experienced significant vision loss.

The plaintiff alleged negligence in her physicians’ failure to make a timely diagnosis. She claimed that CT or fundoscopy should have been performed in the ED and also alleged negligence in Dr. C.’s diagnosis of migraine.

Dr. C. settled prior to trial. Dr. W. claimed that the plaintiff’s presentation and complaints made his treatment reasonable and that in the absence of trauma to the eye, an emergency physician would not normally check for visual acuity. The defendant also contended that the plaintiff’s condition was rare and would have been difficult to diagnose. The defendant also blamed the plaintiff for her delay in seeking follow-up care.

OUTCOME
A jury found the defendant emergency physician 30% at fault, the settling physician 50% at fault, and the plaintiff 20% at fault. The verdict totaled $685,000, including a $205,500 judgment against Dr. W.

COMMENT
Primary care providers see nontraumatic headaches every day. Though usually self-limiting and benign, headaches can also be the only symptom of a serious or fatal condition, including subarachnoid hemorrhage (SAH), meningitis, or giant-cell arteritis. Additionally problematic is the patient with previous headache who presents with headache of a different character or new symptomatology.

Pseudotumor cerebri, or idiopathic intracranial hypertension (IIH), presents subtly but may end with progressive optic atrophy and blindness. Despite its elusive etiology, IIH develops more commonly among women of childbearing age with an elevated BMI. Its nonspecific signs and symptoms include headache and vomiting. More specific clues include pulsatile tinnitus and horizontal diplopia. Progressive loss of peripheral vision, transient visual dimming or blackout in one or both eyes, and blurring and distortion of central vision can occur.

Papilledema is generally present, with venous engorgement, loss of venous pulsation, hemorrhages over or adjacent to the optic disc, elevation or blurring of disc margins, and retinal striae. Performing fundoscopic examination correctly can be challenging, and papilledema can be missed. For those who haven’t seen clinical evidence of papilledema in some time, reviewing retinal findings is encouraged.

Real-world challenges can hinder examination: well-meaning staff who dim the lights to near-blackout conditions; inaccessibility to the patient cocooned in blankets; the chronic pain patient who resists examination, insisting, “I’m just here for my pain medicine.” Don’t let impediments like these hinder your examination.

The physical exam must include neurologic testing—cranial nerve and fundoscopic examination, ocular motility, and visual field testing. It is important to recognize and validate the patient’s pain, but don’t skimp on the exam to spare them discomfort.

To rule out intraocular pathology, visual acuity should be tested. Acuity testing provides objective data and may reveal visual symptoms, such as scotoma or blurred vision. Visual acuity should be considered a vital sign for patients presenting with primary ocular complaints or headache.

Neuroimaging is generally indicated in headache with new abnormal neurologic findings (eg, altered metal status or cognitive function or focal deficit); a new sudden-onset severe headache; or a new headache in any HIV-positive patient. When SAH is a possibility (“thunderclap” headache or “worst in life” with swift intensity), neuroimaging, followed by cerebrospinal fluid analysis and observation, is required.

In this case, fundoscopy and visual field testing were warranted, and acuity testing would be reasonable. The patient’s headache was new, and if the symptoms were severe or if papilledema or visual field defects were discovered, neuroimaging was indicated.

Using “stress” as a diagnostic term may later be brandished by a plaintiff’s attorney as a sign that a patient with organic disease was not taken seriously.

Lastly, patients with a diagnosis of tension headache should be instructed to return if other symptoms arise or the headache changes or worsens—all documented in the patient’s record.—DML           

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Failure to Diagnose Neck Fracture
A California woman in her 60s slipped and fell on a wheelchair ramp outside her home. At the emergency department (ED), she was treated and released by Dr. A., who made a diagnosis of neck sprain. Two days later, she presented to the office of her family physician, Dr. B., where she was seen by a nurse; again, she was diagnosed with a sprained neck.

A CT performed one month later revealed a fractured vertebra in the woman’s neck. By the time the fracture was discovered, the vertebra had already begun to heal in a misaligned position. No further treatment was possible. The patient could no longer turn her head to the left and her ability to turn to the right was limited.

The plaintiff alleged negligence by the defendants in the failure to diagnose her fractured neck.

The defendants claimed that even timely intervention would not have changed the outcome.

Outcome
According to a published account, Dr. A. settled for $9,000 before trial, and Dr. B. settled for $29,999. A defense verdict was returned.

Comment
The facts of the case as presented do not include specifics regarding initial presentation or clinician work-up. When clinicians are confronted with neck pain following trauma, they must decide whether or not to image. Decision rules such as the Canadian C-Spine Rule (CCR) and the National Emergency X-Radiography Utilization Study (NEXUS) can help clinicians make this determination.

The CCR standard requires the patient to (i) be alert and not intoxicated, (ii) not have a distracting injury, (iii) not be considered high-risk, (iv) have at least one low-risk factor, allowing safe assessment of the cervical range of motion, and (v) be able to actively rotate the neck 45° left and right.

High-risk factors include age greater than 65, a dangerous mechanism, or paresthesias in the extremities.

Low-risk factors include a simple rear-end motor vehicle collision, sitting position in the ED, ability to ambulate at any time, delayed onset of neck pain, and absence of midline cervical spinal tenderness.

A dangerous mechanism includes a fall from an elevation greater than 3 ft or five stairs; an axial load to the head (eg, diving); a motor vehicle collision at high speed (> 100 km/h) or involving rollover or ejection; a collision involving a motorized recreational vehicle; or a bicycle collision.

NEXUS requires cervical spine radiography unless the patient meets all of the following criteria: (i) no posterior midline cervical-spine tenderness, (ii) no evidence of intoxication, (iii) a normal level of alertness, (iv) no focal neurologic deficit, and (v) no painful distracting injuries. The NEXUS standard may be recalled using the helpful mnemonic NSAID: Neuro deficit, Spinal tenderness (midline), Altered mental status or loss of consciousness, Intoxication, Distracting injury.

In this case, we don’t know whether the patient was older than 65 and can assume the wheelchair ramp was not so steep as to produce a 3-ft drop. There is no evidence the patient had a distracting injury or exhibited midline cervical tenderness, paresthesias, or other neurologic impairment.

Given the omissions from the case description, it is likely that the patient’s presentation was reassuring. If she was older than 65, following the CCR may have led to a decision to image, whereas applying NEXUS would not.

In this case, the modest $39,000 settlement against two defendants may reflect a decision to settle made by the insurance company, not the clinicians. Some medical malpractice policies give the insurance company authority to settle, allowing a settlement without the clinician’s consent. Insurers will often settle even “nuisance” suits for the cost of the trial, but the settlement will net the clinician an adverse National Practitioner Data Bank record.

Does your malpractice policy give you settlement authority—or the insurance company? This may be an important (or at least interesting) discussion to have with your colleagues!

In sum, when assessing patients with neck pain and trauma, it is advisable to know and apply evidence-based rules, such as CCR or NEXUS. Record your application of the selected rule in the medical record. It may be your best defense if you are challenged after a decision not to image. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Failure to Diagnose Neck Fracture
A California woman in her 60s slipped and fell on a wheelchair ramp outside her home. At the emergency department (ED), she was treated and released by Dr. A., who made a diagnosis of neck sprain. Two days later, she presented to the office of her family physician, Dr. B., where she was seen by a nurse; again, she was diagnosed with a sprained neck.

A CT performed one month later revealed a fractured vertebra in the woman’s neck. By the time the fracture was discovered, the vertebra had already begun to heal in a misaligned position. No further treatment was possible. The patient could no longer turn her head to the left and her ability to turn to the right was limited.

The plaintiff alleged negligence by the defendants in the failure to diagnose her fractured neck.

The defendants claimed that even timely intervention would not have changed the outcome.

Outcome
According to a published account, Dr. A. settled for $9,000 before trial, and Dr. B. settled for $29,999. A defense verdict was returned.

Comment
The facts of the case as presented do not include specifics regarding initial presentation or clinician work-up. When clinicians are confronted with neck pain following trauma, they must decide whether or not to image. Decision rules such as the Canadian C-Spine Rule (CCR) and the National Emergency X-Radiography Utilization Study (NEXUS) can help clinicians make this determination.

The CCR standard requires the patient to (i) be alert and not intoxicated, (ii) not have a distracting injury, (iii) not be considered high-risk, (iv) have at least one low-risk factor, allowing safe assessment of the cervical range of motion, and (v) be able to actively rotate the neck 45° left and right.

High-risk factors include age greater than 65, a dangerous mechanism, or paresthesias in the extremities.

Low-risk factors include a simple rear-end motor vehicle collision, sitting position in the ED, ability to ambulate at any time, delayed onset of neck pain, and absence of midline cervical spinal tenderness.

A dangerous mechanism includes a fall from an elevation greater than 3 ft or five stairs; an axial load to the head (eg, diving); a motor vehicle collision at high speed (> 100 km/h) or involving rollover or ejection; a collision involving a motorized recreational vehicle; or a bicycle collision.

NEXUS requires cervical spine radiography unless the patient meets all of the following criteria: (i) no posterior midline cervical-spine tenderness, (ii) no evidence of intoxication, (iii) a normal level of alertness, (iv) no focal neurologic deficit, and (v) no painful distracting injuries. The NEXUS standard may be recalled using the helpful mnemonic NSAID: Neuro deficit, Spinal tenderness (midline), Altered mental status or loss of consciousness, Intoxication, Distracting injury.

In this case, we don’t know whether the patient was older than 65 and can assume the wheelchair ramp was not so steep as to produce a 3-ft drop. There is no evidence the patient had a distracting injury or exhibited midline cervical tenderness, paresthesias, or other neurologic impairment.

Given the omissions from the case description, it is likely that the patient’s presentation was reassuring. If she was older than 65, following the CCR may have led to a decision to image, whereas applying NEXUS would not.

In this case, the modest $39,000 settlement against two defendants may reflect a decision to settle made by the insurance company, not the clinicians. Some medical malpractice policies give the insurance company authority to settle, allowing a settlement without the clinician’s consent. Insurers will often settle even “nuisance” suits for the cost of the trial, but the settlement will net the clinician an adverse National Practitioner Data Bank record.

Does your malpractice policy give you settlement authority—or the insurance company? This may be an important (or at least interesting) discussion to have with your colleagues!

In sum, when assessing patients with neck pain and trauma, it is advisable to know and apply evidence-based rules, such as CCR or NEXUS. Record your application of the selected rule in the medical record. It may be your best defense if you are challenged after a decision not to image. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Failure to Diagnose Neck Fracture
A California woman in her 60s slipped and fell on a wheelchair ramp outside her home. At the emergency department (ED), she was treated and released by Dr. A., who made a diagnosis of neck sprain. Two days later, she presented to the office of her family physician, Dr. B., where she was seen by a nurse; again, she was diagnosed with a sprained neck.

A CT performed one month later revealed a fractured vertebra in the woman’s neck. By the time the fracture was discovered, the vertebra had already begun to heal in a misaligned position. No further treatment was possible. The patient could no longer turn her head to the left and her ability to turn to the right was limited.

The plaintiff alleged negligence by the defendants in the failure to diagnose her fractured neck.

The defendants claimed that even timely intervention would not have changed the outcome.

Outcome
According to a published account, Dr. A. settled for $9,000 before trial, and Dr. B. settled for $29,999. A defense verdict was returned.

Comment
The facts of the case as presented do not include specifics regarding initial presentation or clinician work-up. When clinicians are confronted with neck pain following trauma, they must decide whether or not to image. Decision rules such as the Canadian C-Spine Rule (CCR) and the National Emergency X-Radiography Utilization Study (NEXUS) can help clinicians make this determination.

The CCR standard requires the patient to (i) be alert and not intoxicated, (ii) not have a distracting injury, (iii) not be considered high-risk, (iv) have at least one low-risk factor, allowing safe assessment of the cervical range of motion, and (v) be able to actively rotate the neck 45° left and right.

High-risk factors include age greater than 65, a dangerous mechanism, or paresthesias in the extremities.

Low-risk factors include a simple rear-end motor vehicle collision, sitting position in the ED, ability to ambulate at any time, delayed onset of neck pain, and absence of midline cervical spinal tenderness.

A dangerous mechanism includes a fall from an elevation greater than 3 ft or five stairs; an axial load to the head (eg, diving); a motor vehicle collision at high speed (> 100 km/h) or involving rollover or ejection; a collision involving a motorized recreational vehicle; or a bicycle collision.

NEXUS requires cervical spine radiography unless the patient meets all of the following criteria: (i) no posterior midline cervical-spine tenderness, (ii) no evidence of intoxication, (iii) a normal level of alertness, (iv) no focal neurologic deficit, and (v) no painful distracting injuries. The NEXUS standard may be recalled using the helpful mnemonic NSAID: Neuro deficit, Spinal tenderness (midline), Altered mental status or loss of consciousness, Intoxication, Distracting injury.

In this case, we don’t know whether the patient was older than 65 and can assume the wheelchair ramp was not so steep as to produce a 3-ft drop. There is no evidence the patient had a distracting injury or exhibited midline cervical tenderness, paresthesias, or other neurologic impairment.

Given the omissions from the case description, it is likely that the patient’s presentation was reassuring. If she was older than 65, following the CCR may have led to a decision to image, whereas applying NEXUS would not.

In this case, the modest $39,000 settlement against two defendants may reflect a decision to settle made by the insurance company, not the clinicians. Some medical malpractice policies give the insurance company authority to settle, allowing a settlement without the clinician’s consent. Insurers will often settle even “nuisance” suits for the cost of the trial, but the settlement will net the clinician an adverse National Practitioner Data Bank record.

Does your malpractice policy give you settlement authority—or the insurance company? This may be an important (or at least interesting) discussion to have with your colleagues!

In sum, when assessing patients with neck pain and trauma, it is advisable to know and apply evidence-based rules, such as CCR or NEXUS. Record your application of the selected rule in the medical record. It may be your best defense if you are challenged after a decision not to image. —DML

Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

In Massachusetts in December 2002, a 42-year-old woman presented to the defendant primary care physician and reported that she had been in a motor vehicle accident almost a month earlier while wearing a seat belt. The patient said she had noticed some redness in her left breast, then discovered a mass in the upper left breast. The physician confirmed the presence of a mass in the patient’s left breast, noting that the location did not correspond to the expected location for breast trauma sustained in an automobile accident.

Mammography was performed the following day. A visible 4-cm mass, which corresponded to the palpable finding in the left breast, was noted. Ultrasound showed a corresponding area of abnormality. The radiologist recommended follow-up in one month. According to the radiologist’s notes, mammography had been performed, but the films were not available. He also noted that if the films became available, he would issue an addendum.

A follow-up ultrasound performed in January 2003 indicated that the lesion had increased in size. The radiologist noted that the lesion could represent a hematoma but recommended aspiration or biopsy. He noted that if no further action was taken for diagnosis, a follow-up ultrasound should be performed in one month; he also recommended careful clinical correlation and close follow-up.

An addendum to the mammogram report was issued four days after the follow-up ultrasound. That report noted a review of studies performed two years earlier along with the studies from December 2002 and January 2003. The radiologist wrote, “Aside from the previously described mass, a probable hematoma, there is no significant change.”

At the defendant primary care physician’s request, the patient was seen by the defendant surgeon. The surgeon felt that the affected area might have been injured by the seat belt shoulder strap during the accident and concluded that the mammogram and follow-up studies suggested a hematoma. The surgeon attempted to aspirate the mass without success. The patient was advised to apply moist heat three times a day and to undergo a repeat mammogram in six months, which the surgeon scheduled.

The surgeon wrote a letter to the primary care physician, in which he failed to mention the radiologist’s impression that the mass was enlarging; neither did he include the radiologist’s recommendations for aspiration or biopsy or repeat ultrasound in one month. The surgeon made no further recommendations to the patient.

In late July 2003, the patient was scheduled for repeat imaging studies, which showed that the mass had continued to enlarge. Biopsy revealed poorly differentiated invasive ductal carcinoma, and metastatic disease was also found. The patient underwent preoperative radiotherapy, mastectomy, and chemotherapy. She died two years later at age 46.

Continue for the outcome >> 

OUTCOME
A $4.75 million settlement was reached.

COMMENT
Of the many dangers confronting diagnosticians, few are as problematic as an incidental fact that drives the workup in the wrong direction. Here, the presentation could be “breast mass and redness post–motor vehicle accident” (MVA) or simply a “breast mass.” The diagnosis may differ dramatically based on how much weight is accorded to certain facts—in this case, the patient’s nearly one-month-old car accident.

Here, we are not told the specifics of the imaging or whether the patient’s breast was tender. The primary care physician may have believed that the redness and mass were caused by the seat belt, but he was sufficiently concerned to order a mammogram, breast ultrasound, and surgical consultation.

By contrast, the surgeon accorded significant weight to the MVA in making his diagnosis. At first, a hematoma seemed plausible; however, there were clues that the mass might not be trauma-related: the initial near-month delay between trauma and presentation, the unexpected disconnect between the location of the mass and the erythema, and arguably, the negative aspiration. The primary care physician picked up on some of these clues and initially responded fairly aggressively, seeking two studies and a surgical consultation. Unfortunately, the consulting surgeon conclusively believed the mass to be a hematoma, and the referring physician, after receiving the surgeon’s comforting report, did not order the second follow-up ultrasound recommended by the radiologist.

Absent the history of the patient’s MVA, the surgeon likely would have insisted on a biopsy or fine-needle aspiration, and the outcome might have been different. We have all heard (and perhaps handed down to students) rules of diagnostic roundsmanship, including “Common things happen commonly,” and have been admonished, “Correlation is not causation.” Keep these admonitions in mind, and don’t be thrown off by what may be an incidental fact in the presentation. Don’t let the next cardiac ischemia masquerade as “pulled muscle from painting yesterday”; don’t let your next ectopic pregnancy slip by as a “bad burrito.” Give antecedent facts their due, but no more.

In sum: First, be prepared to discount what could be an incidental fact; it may save a patient’s life. Second, even after consultation, don’t jettison your initial clinical impression if you remain justifiably concerned. —DML

Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

In Massachusetts in December 2002, a 42-year-old woman presented to the defendant primary care physician and reported that she had been in a motor vehicle accident almost a month earlier while wearing a seat belt. The patient said she had noticed some redness in her left breast, then discovered a mass in the upper left breast. The physician confirmed the presence of a mass in the patient’s left breast, noting that the location did not correspond to the expected location for breast trauma sustained in an automobile accident.

Mammography was performed the following day. A visible 4-cm mass, which corresponded to the palpable finding in the left breast, was noted. Ultrasound showed a corresponding area of abnormality. The radiologist recommended follow-up in one month. According to the radiologist’s notes, mammography had been performed, but the films were not available. He also noted that if the films became available, he would issue an addendum.

A follow-up ultrasound performed in January 2003 indicated that the lesion had increased in size. The radiologist noted that the lesion could represent a hematoma but recommended aspiration or biopsy. He noted that if no further action was taken for diagnosis, a follow-up ultrasound should be performed in one month; he also recommended careful clinical correlation and close follow-up.

An addendum to the mammogram report was issued four days after the follow-up ultrasound. That report noted a review of studies performed two years earlier along with the studies from December 2002 and January 2003. The radiologist wrote, “Aside from the previously described mass, a probable hematoma, there is no significant change.”

At the defendant primary care physician’s request, the patient was seen by the defendant surgeon. The surgeon felt that the affected area might have been injured by the seat belt shoulder strap during the accident and concluded that the mammogram and follow-up studies suggested a hematoma. The surgeon attempted to aspirate the mass without success. The patient was advised to apply moist heat three times a day and to undergo a repeat mammogram in six months, which the surgeon scheduled.

The surgeon wrote a letter to the primary care physician, in which he failed to mention the radiologist’s impression that the mass was enlarging; neither did he include the radiologist’s recommendations for aspiration or biopsy or repeat ultrasound in one month. The surgeon made no further recommendations to the patient.

In late July 2003, the patient was scheduled for repeat imaging studies, which showed that the mass had continued to enlarge. Biopsy revealed poorly differentiated invasive ductal carcinoma, and metastatic disease was also found. The patient underwent preoperative radiotherapy, mastectomy, and chemotherapy. She died two years later at age 46.

Continue for the outcome >> 

OUTCOME
A $4.75 million settlement was reached.

COMMENT
Of the many dangers confronting diagnosticians, few are as problematic as an incidental fact that drives the workup in the wrong direction. Here, the presentation could be “breast mass and redness post–motor vehicle accident” (MVA) or simply a “breast mass.” The diagnosis may differ dramatically based on how much weight is accorded to certain facts—in this case, the patient’s nearly one-month-old car accident.

Here, we are not told the specifics of the imaging or whether the patient’s breast was tender. The primary care physician may have believed that the redness and mass were caused by the seat belt, but he was sufficiently concerned to order a mammogram, breast ultrasound, and surgical consultation.

By contrast, the surgeon accorded significant weight to the MVA in making his diagnosis. At first, a hematoma seemed plausible; however, there were clues that the mass might not be trauma-related: the initial near-month delay between trauma and presentation, the unexpected disconnect between the location of the mass and the erythema, and arguably, the negative aspiration. The primary care physician picked up on some of these clues and initially responded fairly aggressively, seeking two studies and a surgical consultation. Unfortunately, the consulting surgeon conclusively believed the mass to be a hematoma, and the referring physician, after receiving the surgeon’s comforting report, did not order the second follow-up ultrasound recommended by the radiologist.

Absent the history of the patient’s MVA, the surgeon likely would have insisted on a biopsy or fine-needle aspiration, and the outcome might have been different. We have all heard (and perhaps handed down to students) rules of diagnostic roundsmanship, including “Common things happen commonly,” and have been admonished, “Correlation is not causation.” Keep these admonitions in mind, and don’t be thrown off by what may be an incidental fact in the presentation. Don’t let the next cardiac ischemia masquerade as “pulled muscle from painting yesterday”; don’t let your next ectopic pregnancy slip by as a “bad burrito.” Give antecedent facts their due, but no more.

In sum: First, be prepared to discount what could be an incidental fact; it may save a patient’s life. Second, even after consultation, don’t jettison your initial clinical impression if you remain justifiably concerned. —DML

Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

In Massachusetts in December 2002, a 42-year-old woman presented to the defendant primary care physician and reported that she had been in a motor vehicle accident almost a month earlier while wearing a seat belt. The patient said she had noticed some redness in her left breast, then discovered a mass in the upper left breast. The physician confirmed the presence of a mass in the patient’s left breast, noting that the location did not correspond to the expected location for breast trauma sustained in an automobile accident.

Mammography was performed the following day. A visible 4-cm mass, which corresponded to the palpable finding in the left breast, was noted. Ultrasound showed a corresponding area of abnormality. The radiologist recommended follow-up in one month. According to the radiologist’s notes, mammography had been performed, but the films were not available. He also noted that if the films became available, he would issue an addendum.

A follow-up ultrasound performed in January 2003 indicated that the lesion had increased in size. The radiologist noted that the lesion could represent a hematoma but recommended aspiration or biopsy. He noted that if no further action was taken for diagnosis, a follow-up ultrasound should be performed in one month; he also recommended careful clinical correlation and close follow-up.

An addendum to the mammogram report was issued four days after the follow-up ultrasound. That report noted a review of studies performed two years earlier along with the studies from December 2002 and January 2003. The radiologist wrote, “Aside from the previously described mass, a probable hematoma, there is no significant change.”

At the defendant primary care physician’s request, the patient was seen by the defendant surgeon. The surgeon felt that the affected area might have been injured by the seat belt shoulder strap during the accident and concluded that the mammogram and follow-up studies suggested a hematoma. The surgeon attempted to aspirate the mass without success. The patient was advised to apply moist heat three times a day and to undergo a repeat mammogram in six months, which the surgeon scheduled.

The surgeon wrote a letter to the primary care physician, in which he failed to mention the radiologist’s impression that the mass was enlarging; neither did he include the radiologist’s recommendations for aspiration or biopsy or repeat ultrasound in one month. The surgeon made no further recommendations to the patient.

In late July 2003, the patient was scheduled for repeat imaging studies, which showed that the mass had continued to enlarge. Biopsy revealed poorly differentiated invasive ductal carcinoma, and metastatic disease was also found. The patient underwent preoperative radiotherapy, mastectomy, and chemotherapy. She died two years later at age 46.

Continue for the outcome >> 

OUTCOME
A $4.75 million settlement was reached.

COMMENT
Of the many dangers confronting diagnosticians, few are as problematic as an incidental fact that drives the workup in the wrong direction. Here, the presentation could be “breast mass and redness post–motor vehicle accident” (MVA) or simply a “breast mass.” The diagnosis may differ dramatically based on how much weight is accorded to certain facts—in this case, the patient’s nearly one-month-old car accident.

Here, we are not told the specifics of the imaging or whether the patient’s breast was tender. The primary care physician may have believed that the redness and mass were caused by the seat belt, but he was sufficiently concerned to order a mammogram, breast ultrasound, and surgical consultation.

By contrast, the surgeon accorded significant weight to the MVA in making his diagnosis. At first, a hematoma seemed plausible; however, there were clues that the mass might not be trauma-related: the initial near-month delay between trauma and presentation, the unexpected disconnect between the location of the mass and the erythema, and arguably, the negative aspiration. The primary care physician picked up on some of these clues and initially responded fairly aggressively, seeking two studies and a surgical consultation. Unfortunately, the consulting surgeon conclusively believed the mass to be a hematoma, and the referring physician, after receiving the surgeon’s comforting report, did not order the second follow-up ultrasound recommended by the radiologist.

Absent the history of the patient’s MVA, the surgeon likely would have insisted on a biopsy or fine-needle aspiration, and the outcome might have been different. We have all heard (and perhaps handed down to students) rules of diagnostic roundsmanship, including “Common things happen commonly,” and have been admonished, “Correlation is not causation.” Keep these admonitions in mind, and don’t be thrown off by what may be an incidental fact in the presentation. Don’t let the next cardiac ischemia masquerade as “pulled muscle from painting yesterday”; don’t let your next ectopic pregnancy slip by as a “bad burrito.” Give antecedent facts their due, but no more.

In sum: First, be prepared to discount what could be an incidental fact; it may save a patient’s life. Second, even after consultation, don’t jettison your initial clinical impression if you remain justifiably concerned. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

At age 19, an Illinois woman underwent radical open anterior and posterior synovectomy for a rare knee disease at the defendant hospital. Examination immediately after surgery revealed no complications and a normal neurovascular status. That night and into the next morning, however, the patient repeatedly complained of pain below her knee and in her foot, and her neurovascular status was abnormal.

She was given repeated doses of pain medication with increasing dosage. Two resident physicians were contacted by the nursing staff, but neither came to the hospital to examine the patient. The attending physician was never contacted.

Early the next morning, the patient was examined by the attending physician, who made a diagnosis of compartment syndrome and performed a fasciotomy. The patient required several debridements to remove necrotic muscle and tissue below her knee. She lost about 90% of the muscle in the affected leg and has foot drop and severe nerve dysfunction.

The plaintiff claimed that the nurses and resident physicians failed to recognize her condition and communicate it to the attending physician. According to the plaintiff, the delay in diagnosis and treatment of compartment syndrome led to extensive muscle and tissue death.

The defendants argued that the plaintiff did not complain on the night of the surgery as she claimed, and that compartment syndrome was diagnosed in a timely manner. The defendants claimed that fasciotomy performed by the attending physician was too conservative, permitting compartment syndrome to recur or persist.

Continue for the outcome and David Lang's discussion >>

OUTCOME
A $14,891,123.02 verdict was returned.

COMMENT
Many clinical situations can lead to compartment syndrome, including sources inside the limb (fractures) or outside the limb (burns), as well as patient factors in the setting of seemingly trivial trauma (bleeding diathesis/anticoagulation therapy). In any practice setting where limbs are crushed, fractured, surgically manipulated, splinted, burned, or compressed, compartment syndrome may occur. Clinicians working in ambulatory or surgical settings should routinely alert patients to the possibility of this complication, and they must remain vigilant for patient reports of intense or escalating limb pain.

In a typical case of compartment syndrome, blood accumulates in a closed space (compartment) of an extremity, raising pressure sufficient to cause ischemia, followed by nerve damage and muscle necrosis. The classic diagnostic findings include pain, pallor, “pulselessness,” and paralysis (the “four Ps”). Disproportional pain (at times refractory to narcotic analgesia) is the earliest indicator of compartment syndrome. Pain is often described as deep, unremitting, and poorly localized; stretching of the muscle group within the compartment also worsens pain. 

Malpractice cases involving missed compartment syndrome often result in a substantial verdict. This is so because patients are often young, and limb damage is severe—possibly including muscle loss, paralysis, or debilitating ischemic contracture. Fasciotomy is a relatively straightforward, curative treatment, but by the time it is performed, substantial damage may have been done.

To make matters worse, many causes of compartment syndrome are iatrogenic (eg, casting, surgery, instrumentation of a limb in an anticoagulated patient), which can compound the jury’s wrath. Lastly, the plaintiff’s lawyer can paint a vivid picture in which the limb is filling, time is ticking, the patient is screaming, damage is mounting—yet nothing is done. The jury is easily able to understand the elevating pressure in the limb, see the connection between the pressure and the damage, and recognize that a surgical release would have cured the problem. So guided, the jury can become incensed that the limb was allowed to “implode,” seriously degrading a patient’s life—as exemplified by the substantial verdict in favor of this unfortunate 19-year-old woman.

In any injury or intervention involving a limb, instruct the patient to return in the event of intense escalating pain. Exercise caution when the demand for analgesics seems high, escalating, or unduly urgent, or when pain is difficult to control. If compartment syndrome is suspected, compartment pressure measurements should be obtained promptly. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

At age 19, an Illinois woman underwent radical open anterior and posterior synovectomy for a rare knee disease at the defendant hospital. Examination immediately after surgery revealed no complications and a normal neurovascular status. That night and into the next morning, however, the patient repeatedly complained of pain below her knee and in her foot, and her neurovascular status was abnormal.

She was given repeated doses of pain medication with increasing dosage. Two resident physicians were contacted by the nursing staff, but neither came to the hospital to examine the patient. The attending physician was never contacted.

Early the next morning, the patient was examined by the attending physician, who made a diagnosis of compartment syndrome and performed a fasciotomy. The patient required several debridements to remove necrotic muscle and tissue below her knee. She lost about 90% of the muscle in the affected leg and has foot drop and severe nerve dysfunction.

The plaintiff claimed that the nurses and resident physicians failed to recognize her condition and communicate it to the attending physician. According to the plaintiff, the delay in diagnosis and treatment of compartment syndrome led to extensive muscle and tissue death.

The defendants argued that the plaintiff did not complain on the night of the surgery as she claimed, and that compartment syndrome was diagnosed in a timely manner. The defendants claimed that fasciotomy performed by the attending physician was too conservative, permitting compartment syndrome to recur or persist.

Continue for the outcome and David Lang's discussion >>

OUTCOME
A $14,891,123.02 verdict was returned.

COMMENT
Many clinical situations can lead to compartment syndrome, including sources inside the limb (fractures) or outside the limb (burns), as well as patient factors in the setting of seemingly trivial trauma (bleeding diathesis/anticoagulation therapy). In any practice setting where limbs are crushed, fractured, surgically manipulated, splinted, burned, or compressed, compartment syndrome may occur. Clinicians working in ambulatory or surgical settings should routinely alert patients to the possibility of this complication, and they must remain vigilant for patient reports of intense or escalating limb pain.

In a typical case of compartment syndrome, blood accumulates in a closed space (compartment) of an extremity, raising pressure sufficient to cause ischemia, followed by nerve damage and muscle necrosis. The classic diagnostic findings include pain, pallor, “pulselessness,” and paralysis (the “four Ps”). Disproportional pain (at times refractory to narcotic analgesia) is the earliest indicator of compartment syndrome. Pain is often described as deep, unremitting, and poorly localized; stretching of the muscle group within the compartment also worsens pain. 

Malpractice cases involving missed compartment syndrome often result in a substantial verdict. This is so because patients are often young, and limb damage is severe—possibly including muscle loss, paralysis, or debilitating ischemic contracture. Fasciotomy is a relatively straightforward, curative treatment, but by the time it is performed, substantial damage may have been done.

To make matters worse, many causes of compartment syndrome are iatrogenic (eg, casting, surgery, instrumentation of a limb in an anticoagulated patient), which can compound the jury’s wrath. Lastly, the plaintiff’s lawyer can paint a vivid picture in which the limb is filling, time is ticking, the patient is screaming, damage is mounting—yet nothing is done. The jury is easily able to understand the elevating pressure in the limb, see the connection between the pressure and the damage, and recognize that a surgical release would have cured the problem. So guided, the jury can become incensed that the limb was allowed to “implode,” seriously degrading a patient’s life—as exemplified by the substantial verdict in favor of this unfortunate 19-year-old woman.

In any injury or intervention involving a limb, instruct the patient to return in the event of intense escalating pain. Exercise caution when the demand for analgesics seems high, escalating, or unduly urgent, or when pain is difficult to control. If compartment syndrome is suspected, compartment pressure measurements should be obtained promptly. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

At age 19, an Illinois woman underwent radical open anterior and posterior synovectomy for a rare knee disease at the defendant hospital. Examination immediately after surgery revealed no complications and a normal neurovascular status. That night and into the next morning, however, the patient repeatedly complained of pain below her knee and in her foot, and her neurovascular status was abnormal.

She was given repeated doses of pain medication with increasing dosage. Two resident physicians were contacted by the nursing staff, but neither came to the hospital to examine the patient. The attending physician was never contacted.

Early the next morning, the patient was examined by the attending physician, who made a diagnosis of compartment syndrome and performed a fasciotomy. The patient required several debridements to remove necrotic muscle and tissue below her knee. She lost about 90% of the muscle in the affected leg and has foot drop and severe nerve dysfunction.

The plaintiff claimed that the nurses and resident physicians failed to recognize her condition and communicate it to the attending physician. According to the plaintiff, the delay in diagnosis and treatment of compartment syndrome led to extensive muscle and tissue death.

The defendants argued that the plaintiff did not complain on the night of the surgery as she claimed, and that compartment syndrome was diagnosed in a timely manner. The defendants claimed that fasciotomy performed by the attending physician was too conservative, permitting compartment syndrome to recur or persist.

Continue for the outcome and David Lang's discussion >>

OUTCOME
A $14,891,123.02 verdict was returned.

COMMENT
Many clinical situations can lead to compartment syndrome, including sources inside the limb (fractures) or outside the limb (burns), as well as patient factors in the setting of seemingly trivial trauma (bleeding diathesis/anticoagulation therapy). In any practice setting where limbs are crushed, fractured, surgically manipulated, splinted, burned, or compressed, compartment syndrome may occur. Clinicians working in ambulatory or surgical settings should routinely alert patients to the possibility of this complication, and they must remain vigilant for patient reports of intense or escalating limb pain.

In a typical case of compartment syndrome, blood accumulates in a closed space (compartment) of an extremity, raising pressure sufficient to cause ischemia, followed by nerve damage and muscle necrosis. The classic diagnostic findings include pain, pallor, “pulselessness,” and paralysis (the “four Ps”). Disproportional pain (at times refractory to narcotic analgesia) is the earliest indicator of compartment syndrome. Pain is often described as deep, unremitting, and poorly localized; stretching of the muscle group within the compartment also worsens pain. 

Malpractice cases involving missed compartment syndrome often result in a substantial verdict. This is so because patients are often young, and limb damage is severe—possibly including muscle loss, paralysis, or debilitating ischemic contracture. Fasciotomy is a relatively straightforward, curative treatment, but by the time it is performed, substantial damage may have been done.

To make matters worse, many causes of compartment syndrome are iatrogenic (eg, casting, surgery, instrumentation of a limb in an anticoagulated patient), which can compound the jury’s wrath. Lastly, the plaintiff’s lawyer can paint a vivid picture in which the limb is filling, time is ticking, the patient is screaming, damage is mounting—yet nothing is done. The jury is easily able to understand the elevating pressure in the limb, see the connection between the pressure and the damage, and recognize that a surgical release would have cured the problem. So guided, the jury can become incensed that the limb was allowed to “implode,” seriously degrading a patient’s life—as exemplified by the substantial verdict in favor of this unfortunate 19-year-old woman.

In any injury or intervention involving a limb, instruct the patient to return in the event of intense escalating pain. Exercise caution when the demand for analgesics seems high, escalating, or unduly urgent, or when pain is difficult to control. If compartment syndrome is suspected, compartment pressure measurements should be obtained promptly. —DML

Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

A 54-year-old Utah man awoke in late February 2002 with a “gurgling” sensation and pain in his mid-abdomen. He felt sick all that day and into the next. He vomited three times the next day and noticed the pain move to the lower-right quadrant of the abdomen.

His sister took him to an urgent care clinic, where he was examined by a PA. The patient was diagnosed with flu, and antiviral medication, ibuprofen, and bed rest were prescribed. When asked about appendicitis, the PA responded, “I guarantee you do not have appendicitis.”

The patient initially felt better, but then his condition worsened. Calls to the clinic for more medication were not returned. The man was taken to another clinic 10 days later and then referred to a hospital, where he was diagnosed with a ruptured appendix.

An emergency appendectomy was performed. The patient was hospitalized for 12 days and required six months to fully recover. The plaintiff alleged negligence in the PA’s failure to diagnose appendicitis.

Outcome
According to a published report, a confidential settlement was reached in mediation.

Comment
The patient in this case presented with generalized mid-abdominal pain and vomiting, with pain moving to his right lower quadrant. Migrating pain is one of the more specific findings of appendicitis, so it is not entirely clear from the facts presented why appendicitis was not considered more fully. It seems that a more complete workup, including diagnostic imaging and laboratory analysis, was indicated.

Appendicitis is common; so are complaints of abdominal pain. Appendicitis must be considered in all cases of abdominal pain, as must meningitis in all cases of headache. Yet any abdominal pain could be appendicitis, and any headache could be meningitis. The trick is panning out the few with a serious illness from the many with mild disease—all potentially presenting with the same symptom complex early on.

We cannot observe all patients indefinitely. Often, a patient must be discharged with vague symptoms and nonspecific findings that could be the start of something more grave. In such cases, clinicians should document the negative findings that make further emergency evaluation unwarranted and enlist the patient to monitor for signs and symptoms warranting an immediate return. Document those instructions fully. This approach can be defended in court, because the clinician considered a grave diagnosis yet had no reason to act on it in the absence of more specific symptomatology, and informed the patient of changes requiring immediate return.

Patients often raise the specter of ominous diagnoses. Such concerns should be met with an acknowledgement that such concerns are a “good thought,” followed by what is hopefully a laundry list of signs and symptoms that the patient does not have. Discharging patients with specific instructions builds rapport with the patient and family. I’ve found that patients so informed will often return if symptoms change to fit a previously discussed pattern and will even credit the clinician for making the diagnosis.

Of course, squarely at odds with this approach are dogmatic pronouncements “guaranteeing” patients of a diagnosis or outcome. Such certitude should be reserved for actors practicing medicine on television or the truly clairvoyant. (Most of us are neither).

One thing is certain: If such pronouncements are wrong, a plaintiff’s attorney will hang them around the neck of a defending clinician as an albatross—and a jury will be invited to conclude that the clinician was arrogant and imprudent.

In sum, rarely speak in terms of absolutes. Always respect the chance of a changing clinical course. And document your ­concern and instructions clearly. —DML

Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

A 54-year-old Utah man awoke in late February 2002 with a “gurgling” sensation and pain in his mid-abdomen. He felt sick all that day and into the next. He vomited three times the next day and noticed the pain move to the lower-right quadrant of the abdomen.

His sister took him to an urgent care clinic, where he was examined by a PA. The patient was diagnosed with flu, and antiviral medication, ibuprofen, and bed rest were prescribed. When asked about appendicitis, the PA responded, “I guarantee you do not have appendicitis.”

The patient initially felt better, but then his condition worsened. Calls to the clinic for more medication were not returned. The man was taken to another clinic 10 days later and then referred to a hospital, where he was diagnosed with a ruptured appendix.

An emergency appendectomy was performed. The patient was hospitalized for 12 days and required six months to fully recover. The plaintiff alleged negligence in the PA’s failure to diagnose appendicitis.

Outcome
According to a published report, a confidential settlement was reached in mediation.

Comment
The patient in this case presented with generalized mid-abdominal pain and vomiting, with pain moving to his right lower quadrant. Migrating pain is one of the more specific findings of appendicitis, so it is not entirely clear from the facts presented why appendicitis was not considered more fully. It seems that a more complete workup, including diagnostic imaging and laboratory analysis, was indicated.

Appendicitis is common; so are complaints of abdominal pain. Appendicitis must be considered in all cases of abdominal pain, as must meningitis in all cases of headache. Yet any abdominal pain could be appendicitis, and any headache could be meningitis. The trick is panning out the few with a serious illness from the many with mild disease—all potentially presenting with the same symptom complex early on.

We cannot observe all patients indefinitely. Often, a patient must be discharged with vague symptoms and nonspecific findings that could be the start of something more grave. In such cases, clinicians should document the negative findings that make further emergency evaluation unwarranted and enlist the patient to monitor for signs and symptoms warranting an immediate return. Document those instructions fully. This approach can be defended in court, because the clinician considered a grave diagnosis yet had no reason to act on it in the absence of more specific symptomatology, and informed the patient of changes requiring immediate return.

Patients often raise the specter of ominous diagnoses. Such concerns should be met with an acknowledgement that such concerns are a “good thought,” followed by what is hopefully a laundry list of signs and symptoms that the patient does not have. Discharging patients with specific instructions builds rapport with the patient and family. I’ve found that patients so informed will often return if symptoms change to fit a previously discussed pattern and will even credit the clinician for making the diagnosis.

Of course, squarely at odds with this approach are dogmatic pronouncements “guaranteeing” patients of a diagnosis or outcome. Such certitude should be reserved for actors practicing medicine on television or the truly clairvoyant. (Most of us are neither).

One thing is certain: If such pronouncements are wrong, a plaintiff’s attorney will hang them around the neck of a defending clinician as an albatross—and a jury will be invited to conclude that the clinician was arrogant and imprudent.

In sum, rarely speak in terms of absolutes. Always respect the chance of a changing clinical course. And document your ­concern and instructions clearly. —DML

Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

A 54-year-old Utah man awoke in late February 2002 with a “gurgling” sensation and pain in his mid-abdomen. He felt sick all that day and into the next. He vomited three times the next day and noticed the pain move to the lower-right quadrant of the abdomen.

His sister took him to an urgent care clinic, where he was examined by a PA. The patient was diagnosed with flu, and antiviral medication, ibuprofen, and bed rest were prescribed. When asked about appendicitis, the PA responded, “I guarantee you do not have appendicitis.”

The patient initially felt better, but then his condition worsened. Calls to the clinic for more medication were not returned. The man was taken to another clinic 10 days later and then referred to a hospital, where he was diagnosed with a ruptured appendix.

An emergency appendectomy was performed. The patient was hospitalized for 12 days and required six months to fully recover. The plaintiff alleged negligence in the PA’s failure to diagnose appendicitis.

Outcome
According to a published report, a confidential settlement was reached in mediation.

Comment
The patient in this case presented with generalized mid-abdominal pain and vomiting, with pain moving to his right lower quadrant. Migrating pain is one of the more specific findings of appendicitis, so it is not entirely clear from the facts presented why appendicitis was not considered more fully. It seems that a more complete workup, including diagnostic imaging and laboratory analysis, was indicated.

Appendicitis is common; so are complaints of abdominal pain. Appendicitis must be considered in all cases of abdominal pain, as must meningitis in all cases of headache. Yet any abdominal pain could be appendicitis, and any headache could be meningitis. The trick is panning out the few with a serious illness from the many with mild disease—all potentially presenting with the same symptom complex early on.

We cannot observe all patients indefinitely. Often, a patient must be discharged with vague symptoms and nonspecific findings that could be the start of something more grave. In such cases, clinicians should document the negative findings that make further emergency evaluation unwarranted and enlist the patient to monitor for signs and symptoms warranting an immediate return. Document those instructions fully. This approach can be defended in court, because the clinician considered a grave diagnosis yet had no reason to act on it in the absence of more specific symptomatology, and informed the patient of changes requiring immediate return.

Patients often raise the specter of ominous diagnoses. Such concerns should be met with an acknowledgement that such concerns are a “good thought,” followed by what is hopefully a laundry list of signs and symptoms that the patient does not have. Discharging patients with specific instructions builds rapport with the patient and family. I’ve found that patients so informed will often return if symptoms change to fit a previously discussed pattern and will even credit the clinician for making the diagnosis.

Of course, squarely at odds with this approach are dogmatic pronouncements “guaranteeing” patients of a diagnosis or outcome. Such certitude should be reserved for actors practicing medicine on television or the truly clairvoyant. (Most of us are neither).

One thing is certain: If such pronouncements are wrong, a plaintiff’s attorney will hang them around the neck of a defending clinician as an albatross—and a jury will be invited to conclude that the clinician was arrogant and imprudent.

In sum, rarely speak in terms of absolutes. Always respect the chance of a changing clinical course. And document your ­concern and instructions clearly. —DML

Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

From 1994 to 2005, a Florida woman, age 40, was a patient of the defendant primary care physician. In 2000, she began to experience rectal bleeding, of which she claimed to have advised her doctor over the years. The physician denied that the patient ever complained of rectal bleeding before June 2005, and whether she had mentioned the problem while in his care was hotly contested.

A rectal exam was performed in October 2000, at which time the patient was noted to have hemorrhoids. However, hematology and stool hematests were negative. The physician maintained that the hemorrhoids remained stable.

The physician did not refer the woman to a gastroenterologist for evaluation until June 2005, when a complaint of rectal bleeding was first documented. In July 2005, the woman was diagnosed with rectal cancer and required removal of the right lobe of the liver due to its spread.

Outcome
According to published reports, a $9,728,835.15 verdict was returned. Posttrial motions were pending.

Comment
After a poor outcome, patients may have a skewed view of how, when, and to whom they have made complaints. Motivated by fear, or a desire to maintain a fully functional status, patients may hide symptoms from their clinician, only to later recollect that such symptoms were communicated, when in fact they were not.  

Legal cases involving an “unspoken complaint” often turn on the perceived credibility of the witnesses and little else. Two strategies may prove useful to minimize the risk of the uncommunicated complaint.

First, it is helpful for a practice to have multiple layers to record and capture patient complaints. Having the patient record the reason for her visit, in writing, in her own words, can improve documentation and care. On occasion, a patient’s written self-complaint can be useful to catch a symptom that may slip by during history taking. Further, medical assistants, nursing staff, and other professionals should also record patient complaints directly—habitually using quotation marks to capture the patient’s actual language where possible and appropriate. Lastly, the clinician should make a practice of first seeking the history independently, only using the patient self-report and nursing assessment to make sure all symptoms and signs have been addressed. This three-tiered system will provide a solid record for what was communicated and make clear the symptoms that were described.

But what about those complaints not communicated? A patient’s record may be “closed” through a technique known as “exhaustion.” Here, clinicians can borrow a page from attorneys: During deposition, attorneys are trained to “exhaust” all possible avenues of evidence for each possible area of questioning. The questioner will conclude by confirming for the record that the deponent has “exhausted” his memory and cannot provide any additional detail.

Clinicians, after receiving the history of present illness (HPI) and recording all pertinent positives and negatives, can “exhaust” the history by asking: “Apart from what you have already told me, do you have any other symptoms? Is anything else bothering you at all?” While clinicians often ask such a question, the response is frequently not recorded. The patient’s negative answer may be documented with language akin to: “Patient denies any additional symptoms or complaints.” Ending the history portion of the clinical note this way closes the record to additional complaints. A clinician is then well positioned to testify that it is his practice to end history taking in a manner calculated to “catch everything” and has documentation to support that claim.

Plaintiff’s counsel, reviewing records and contemplating suit, will find layer upon layer of harmonious documentation, from several professionals. This is far more defensible than a simple set of vital signs with a single brief HPI that, years later, may be cryptic at best. —DML

Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

From 1994 to 2005, a Florida woman, age 40, was a patient of the defendant primary care physician. In 2000, she began to experience rectal bleeding, of which she claimed to have advised her doctor over the years. The physician denied that the patient ever complained of rectal bleeding before June 2005, and whether she had mentioned the problem while in his care was hotly contested.

A rectal exam was performed in October 2000, at which time the patient was noted to have hemorrhoids. However, hematology and stool hematests were negative. The physician maintained that the hemorrhoids remained stable.

The physician did not refer the woman to a gastroenterologist for evaluation until June 2005, when a complaint of rectal bleeding was first documented. In July 2005, the woman was diagnosed with rectal cancer and required removal of the right lobe of the liver due to its spread.

Outcome
According to published reports, a $9,728,835.15 verdict was returned. Posttrial motions were pending.

Comment
After a poor outcome, patients may have a skewed view of how, when, and to whom they have made complaints. Motivated by fear, or a desire to maintain a fully functional status, patients may hide symptoms from their clinician, only to later recollect that such symptoms were communicated, when in fact they were not.  

Legal cases involving an “unspoken complaint” often turn on the perceived credibility of the witnesses and little else. Two strategies may prove useful to minimize the risk of the uncommunicated complaint.

First, it is helpful for a practice to have multiple layers to record and capture patient complaints. Having the patient record the reason for her visit, in writing, in her own words, can improve documentation and care. On occasion, a patient’s written self-complaint can be useful to catch a symptom that may slip by during history taking. Further, medical assistants, nursing staff, and other professionals should also record patient complaints directly—habitually using quotation marks to capture the patient’s actual language where possible and appropriate. Lastly, the clinician should make a practice of first seeking the history independently, only using the patient self-report and nursing assessment to make sure all symptoms and signs have been addressed. This three-tiered system will provide a solid record for what was communicated and make clear the symptoms that were described.

But what about those complaints not communicated? A patient’s record may be “closed” through a technique known as “exhaustion.” Here, clinicians can borrow a page from attorneys: During deposition, attorneys are trained to “exhaust” all possible avenues of evidence for each possible area of questioning. The questioner will conclude by confirming for the record that the deponent has “exhausted” his memory and cannot provide any additional detail.

Clinicians, after receiving the history of present illness (HPI) and recording all pertinent positives and negatives, can “exhaust” the history by asking: “Apart from what you have already told me, do you have any other symptoms? Is anything else bothering you at all?” While clinicians often ask such a question, the response is frequently not recorded. The patient’s negative answer may be documented with language akin to: “Patient denies any additional symptoms or complaints.” Ending the history portion of the clinical note this way closes the record to additional complaints. A clinician is then well positioned to testify that it is his practice to end history taking in a manner calculated to “catch everything” and has documentation to support that claim.

Plaintiff’s counsel, reviewing records and contemplating suit, will find layer upon layer of harmonious documentation, from several professionals. This is far more defensible than a simple set of vital signs with a single brief HPI that, years later, may be cryptic at best. —DML

Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

From 1994 to 2005, a Florida woman, age 40, was a patient of the defendant primary care physician. In 2000, she began to experience rectal bleeding, of which she claimed to have advised her doctor over the years. The physician denied that the patient ever complained of rectal bleeding before June 2005, and whether she had mentioned the problem while in his care was hotly contested.

A rectal exam was performed in October 2000, at which time the patient was noted to have hemorrhoids. However, hematology and stool hematests were negative. The physician maintained that the hemorrhoids remained stable.

The physician did not refer the woman to a gastroenterologist for evaluation until June 2005, when a complaint of rectal bleeding was first documented. In July 2005, the woman was diagnosed with rectal cancer and required removal of the right lobe of the liver due to its spread.

Outcome
According to published reports, a $9,728,835.15 verdict was returned. Posttrial motions were pending.

Comment
After a poor outcome, patients may have a skewed view of how, when, and to whom they have made complaints. Motivated by fear, or a desire to maintain a fully functional status, patients may hide symptoms from their clinician, only to later recollect that such symptoms were communicated, when in fact they were not.  

Legal cases involving an “unspoken complaint” often turn on the perceived credibility of the witnesses and little else. Two strategies may prove useful to minimize the risk of the uncommunicated complaint.

First, it is helpful for a practice to have multiple layers to record and capture patient complaints. Having the patient record the reason for her visit, in writing, in her own words, can improve documentation and care. On occasion, a patient’s written self-complaint can be useful to catch a symptom that may slip by during history taking. Further, medical assistants, nursing staff, and other professionals should also record patient complaints directly—habitually using quotation marks to capture the patient’s actual language where possible and appropriate. Lastly, the clinician should make a practice of first seeking the history independently, only using the patient self-report and nursing assessment to make sure all symptoms and signs have been addressed. This three-tiered system will provide a solid record for what was communicated and make clear the symptoms that were described.

But what about those complaints not communicated? A patient’s record may be “closed” through a technique known as “exhaustion.” Here, clinicians can borrow a page from attorneys: During deposition, attorneys are trained to “exhaust” all possible avenues of evidence for each possible area of questioning. The questioner will conclude by confirming for the record that the deponent has “exhausted” his memory and cannot provide any additional detail.

Clinicians, after receiving the history of present illness (HPI) and recording all pertinent positives and negatives, can “exhaust” the history by asking: “Apart from what you have already told me, do you have any other symptoms? Is anything else bothering you at all?” While clinicians often ask such a question, the response is frequently not recorded. The patient’s negative answer may be documented with language akin to: “Patient denies any additional symptoms or complaints.” Ending the history portion of the clinical note this way closes the record to additional complaints. A clinician is then well positioned to testify that it is his practice to end history taking in a manner calculated to “catch everything” and has documentation to support that claim.

Plaintiff’s counsel, reviewing records and contemplating suit, will find layer upon layer of harmonious documentation, from several professionals. This is far more defensible than a simple set of vital signs with a single brief HPI that, years later, may be cryptic at best. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

The patient, a middle-aged Virginia man in good health, awoke one night with chills and body aches. He was seen by the defendant physicians the next day. At that visit, he was offered a chest x-ray but declined. The defendants prescribed amoxicillin and sent the man home.

During the two months that followed, the patient was seen by the defendants several times for continuing respiratory symptoms. The defendants never made a definitive diagnosis.

At the patient’s final appointment with the defendants, he underwent a chest x-ray. After reviewing the x-ray images, the defendants sent the patient to the hospital on an emergency basis. He was diagnosed with empyema (specifically, a collection of pus in the pleural space around the left lung). He underwent a left thoracotomy, left lung decortication, drainage to treat pneumonia and empyema, and a muscle flap procedure in which muscle was taken from his back to encase the affected lung. He was hospitalized for 13 days.

The plaintiff experienced partial loss of his left lung, diminished lung capacity, increased susceptibility to future infections, and psychological injuries.

At trial, the plaintiff and defendants gave conflicting testimony regarding the patient’s reported symptoms and complaints and whether the patient was “offered” or “urged” to have a chest x-ray.

Outcome
According to a published account, a $475,000 settlement was reached.

Comment
While the symptoms and complaints may have been in dispute, the patient clearly refused a chest x-ray at his initial appointment and likely refused subsequent x-ray studies. Managing a noncompliant patient is procedurally difficult and legally risky. Patients who refuse examinations, tests, or referrals may “throw off” the clinician’s diagnostic workup, with inaccurate or incomplete results.

Following a poor outcome, the plaintiff’s attorney will recast clinician–patient interactions to minimize the impact of the patient’s wishes on the clinician’s judgment, and claim that the patient would have consented but for the clinician’s failure to communicate some aspect of the refused intervention.

Therefore, when confronted with a patient refusing care, it is important to fully explain the nature of the recommended intervention. Identify and document the reasons for refusal and response to the refusal (eg, “patient refusing x-ray: concerned about radiation exposure; five-minute discussion with patient discussing relatively small radiation dosage; patient understands but insists: ‘I want no radiation.’”). When care is refused, it is generally helpful to record the patient’s actual words in quotes and the clinician’s response to the assertions.

Further, when family members are present, it is also helpful to record family members’ involvement as the patient’s refusal is addressed. Often this level of attention may change the patient’s mind or serve to enlist the support of a family member to alleviate the patient’s concerns.

Lastly, be sure to record the risks of noncompliance in plain terms (eg, “risk of death and undetected progression of serious illness discussed over 15 minutes with sister, Jane, and nurse, Camille, present”). Be frank with the patient, and be clear in the record. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

The patient, a middle-aged Virginia man in good health, awoke one night with chills and body aches. He was seen by the defendant physicians the next day. At that visit, he was offered a chest x-ray but declined. The defendants prescribed amoxicillin and sent the man home.

During the two months that followed, the patient was seen by the defendants several times for continuing respiratory symptoms. The defendants never made a definitive diagnosis.

At the patient’s final appointment with the defendants, he underwent a chest x-ray. After reviewing the x-ray images, the defendants sent the patient to the hospital on an emergency basis. He was diagnosed with empyema (specifically, a collection of pus in the pleural space around the left lung). He underwent a left thoracotomy, left lung decortication, drainage to treat pneumonia and empyema, and a muscle flap procedure in which muscle was taken from his back to encase the affected lung. He was hospitalized for 13 days.

The plaintiff experienced partial loss of his left lung, diminished lung capacity, increased susceptibility to future infections, and psychological injuries.

At trial, the plaintiff and defendants gave conflicting testimony regarding the patient’s reported symptoms and complaints and whether the patient was “offered” or “urged” to have a chest x-ray.

Outcome
According to a published account, a $475,000 settlement was reached.

Comment
While the symptoms and complaints may have been in dispute, the patient clearly refused a chest x-ray at his initial appointment and likely refused subsequent x-ray studies. Managing a noncompliant patient is procedurally difficult and legally risky. Patients who refuse examinations, tests, or referrals may “throw off” the clinician’s diagnostic workup, with inaccurate or incomplete results.

Following a poor outcome, the plaintiff’s attorney will recast clinician–patient interactions to minimize the impact of the patient’s wishes on the clinician’s judgment, and claim that the patient would have consented but for the clinician’s failure to communicate some aspect of the refused intervention.

Therefore, when confronted with a patient refusing care, it is important to fully explain the nature of the recommended intervention. Identify and document the reasons for refusal and response to the refusal (eg, “patient refusing x-ray: concerned about radiation exposure; five-minute discussion with patient discussing relatively small radiation dosage; patient understands but insists: ‘I want no radiation.’”). When care is refused, it is generally helpful to record the patient’s actual words in quotes and the clinician’s response to the assertions.

Further, when family members are present, it is also helpful to record family members’ involvement as the patient’s refusal is addressed. Often this level of attention may change the patient’s mind or serve to enlist the support of a family member to alleviate the patient’s concerns.

Lastly, be sure to record the risks of noncompliance in plain terms (eg, “risk of death and undetected progression of serious illness discussed over 15 minutes with sister, Jane, and nurse, Camille, present”). Be frank with the patient, and be clear in the record. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

The patient, a middle-aged Virginia man in good health, awoke one night with chills and body aches. He was seen by the defendant physicians the next day. At that visit, he was offered a chest x-ray but declined. The defendants prescribed amoxicillin and sent the man home.

During the two months that followed, the patient was seen by the defendants several times for continuing respiratory symptoms. The defendants never made a definitive diagnosis.

At the patient’s final appointment with the defendants, he underwent a chest x-ray. After reviewing the x-ray images, the defendants sent the patient to the hospital on an emergency basis. He was diagnosed with empyema (specifically, a collection of pus in the pleural space around the left lung). He underwent a left thoracotomy, left lung decortication, drainage to treat pneumonia and empyema, and a muscle flap procedure in which muscle was taken from his back to encase the affected lung. He was hospitalized for 13 days.

The plaintiff experienced partial loss of his left lung, diminished lung capacity, increased susceptibility to future infections, and psychological injuries.

At trial, the plaintiff and defendants gave conflicting testimony regarding the patient’s reported symptoms and complaints and whether the patient was “offered” or “urged” to have a chest x-ray.

Outcome
According to a published account, a $475,000 settlement was reached.

Comment
While the symptoms and complaints may have been in dispute, the patient clearly refused a chest x-ray at his initial appointment and likely refused subsequent x-ray studies. Managing a noncompliant patient is procedurally difficult and legally risky. Patients who refuse examinations, tests, or referrals may “throw off” the clinician’s diagnostic workup, with inaccurate or incomplete results.

Following a poor outcome, the plaintiff’s attorney will recast clinician–patient interactions to minimize the impact of the patient’s wishes on the clinician’s judgment, and claim that the patient would have consented but for the clinician’s failure to communicate some aspect of the refused intervention.

Therefore, when confronted with a patient refusing care, it is important to fully explain the nature of the recommended intervention. Identify and document the reasons for refusal and response to the refusal (eg, “patient refusing x-ray: concerned about radiation exposure; five-minute discussion with patient discussing relatively small radiation dosage; patient understands but insists: ‘I want no radiation.’”). When care is refused, it is generally helpful to record the patient’s actual words in quotes and the clinician’s response to the assertions.

Further, when family members are present, it is also helpful to record family members’ involvement as the patient’s refusal is addressed. Often this level of attention may change the patient’s mind or serve to enlist the support of a family member to alleviate the patient’s concerns.

Lastly, be sure to record the risks of noncompliance in plain terms (eg, “risk of death and undetected progression of serious illness discussed over 15 minutes with sister, Jane, and nurse, Camille, present”). Be frank with the patient, and be clear in the record. —DML