By Damian D. Capozzola, Esq.
Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles
Tim Laquer,
2015 JD Candidate
Pepperdine University School of Law, Malibu, CA
News: The patient, a 40-year-old man, sought treatment in May 2008 for chronic lower back pain at a pain clinic operated by two physicians. The initial treatment, which consisted of medication injections into the patient’s back, was successful for a time, but the patient returned to the clinic three more times seeking further pain relief. After the third set of epidural steroid injections, the patient developed swelling at the injection site and allegedly told the physician this information before receiving his fourth injection. However, the physician continued with the injection, which passed through the infected, swollen area and contaminated the patient’s spinal cord. The patient’s condition deteriorated quickly: He was diagnosed with meningitis caused by methicillin-resistant Staphylococcus aureus (MRSA). The patient survived, but with serious spinal injuries. The patient brought suit against the physician and clinic, but the patient took his own life before the case was heard in court. His parents and estate continued the suit, and the jury found the physician and clinic liable, awarding $2.88 million in damages.
Background: In this matter, the patient was an active 40-year-old man who suffered from chronic lower back pain. He sought treatment from a pain clinic operated by two physicians, both certified in anesthesiology and pain management. In May 2008, the patient received a first set of medication injection into his back, which was temporarily successful at relieving his pain. He returned in December for another round of injections, done by the same physician as the first round. This second set of injections was less successful, and the patient visited the clinic again in January for more treatment. The original physician who performed the first two treatments was out of town, so the second physician attended to the patient this time. This second physician gave the patient an epidural steroid injection (ESI) in his lower back.
The injection did nothing to relieve the patient’s pain; however, swelling and a lump appeared at the injection site. The patient returned to the pain clinic eight days after this third round of injections and was attended to by the second physician again. What happened at this visit was debated during trial. The patient alleged that he told a nurse about the swelling, who then talked to the physician and reported back that the lump was not a problem. The physician claimed to have never heard about the swelling, and it was not mentioned in the patient’s medical records, thus it did not exist. Regardless of which version is true, the physician continued with another injection. Standard practice is that there is at least a two-week waiting period between steroid injections, so this fourth injection was very unusual, given that there can be serious side effects without further review and discussions with patient and peers. The medical record did show, however, that the entire procedure for this injection was done in three minutes. The patient’s condition deteriorated quickly after the injection: His pain increased, and he was nearly immobilized. He was taken to an emergency department where he was diagnosed with an epidural abscess, deep tissue infection, and meningitis caused by MRSA. Surprisingly, after about 10 days of treatment, the patient pulled through the serious infection, but he was left with severe spinal injuries, impotency, loss of control of his bladder and bowels, difficulty walking, and constant pain.
The patient brought suit and alleged that the second physician’s final injection was negligent due to the existing lump, which was a sign of infection, and this infection was spread to the spinal cord from the injection. The patient took his own life before the case made it to trial. His parents and estate continued the suit and blamed the suicide on the underlying medical condition brought about by the negligence of the defendants. The physician and clinic defended on the basis that the patient had a history of psychiatric issues that led to the suicide, not the underlying medical condition brought about by negligence. The patient had a history of bipolar disorder and had admitted himself to psychiatric care for treatment of depression in the past. His parents claimed that these psychiatric issues were under control in the recent past. After two days of deliberation, the jury returned a verdict for the plaintiffs and awarded them $2.88 million, most of which went to the patient’s estate. The jury found the physician to be 75% at fault and the clinic to be 25% at fault.
What this means to you: This case illustrates the dangers of infections and failing to recognize their signs and symptoms. There were multiple problems that occurred and resulted in the serious injuries that the patient suffered: The third injection caused an infection, and the fourth injection spread the infection from the site to the spine, which dramatically increased its harm. Physicians must follow proper safety procedures to prevent infection from occurring in the first place. The Center for Disease Control and Prevention (CDC) has identified that injections pose particular dangers when it is a spinal injection. Cases of bacterial meningitis have been identified in patients undergoing spinal injection procedures that require injection of material or insertion of a catheter into epidural or subdural spaces. These situations apply to any location where a physician might be for a spinal injection, and the CDC particularly recognized the need for caution at pain management clinics.
The CDC has specific recommendations for physicians performing spinal injections as relating to infection prevention: Facemasks should always be work, and aseptic technique should always be followed. For example, physicians should use a single-dose vial of medication or contrast solution for only one patient, as well as ensuring that needles or syringes are not reused for different patients. Injection sites must always be properly cleaned before proceeding, and if there are any abnormalities, these should be examined and caution should be observed.
Before performing any procedure, physicians should examine patients and look for any signs or symptoms of infection. If the patient has a fever or unhealed skin sores, this might be a sign, and the physician should consider whether or not to postpone an injection or operation. A patient who already has an infection will have a more difficult time recovering and might suffer even worse adverse effects from the operation. A physical examination, combined with a review of the patient’s medical record, is the only way to accomplish a complete assessment of the patient’s current status. Using both processes ensures that anything omitted from the record, such as a nurse’s conversation with the physician about the lump at the injection site, would be discovered on physical examination. The physician here completed the injection in a mere three minutes, which is hardly enough time to consult and examine the patient thoroughly to determine if the procedure is proper.
Communication is extremely important, and physicians need to listen to communications from nurses and patients. Each of these parties can have vital information that physicians might need to perform proper diagnosis and treatment of patients. If these communications are ignored or never occur, there is a danger that this information will be lost. A physician acting without being completely informed is at risk.
Defending on the basis of the medical record alone might be a difficult, if not impossible, proposition. Physicians are wise to consult a patient’s medical record, and they should do so before diagnosing or treating a patient. However, medical records are not infallible, just as the humans who create the records are not infallible. Mistakes happen, and for whatever reason, a particular condition or symptom might not make it into the patient’s medical record. Relying on this document exclusively is thus dangerous, as the physician here learned: He claimed that, "If it’s not in the record, it didn’t exist." What is understandable is that physicians are not required to remember the details of every procedure from the time of the procedure to the time of trial, especially since it might be many years before a trial occurs. The absence of information from a medical record does not necessarily mean that the event or condition did not happen, as it may have been a simple oversight or mistake in the recordkeeping. Here, if the physician had examined the patient for signs of infection, he could have recorded this positive examination and noted that none were found, which would have been a much stronger defense than simply stating that it didn’t exist since it wasn’t in the record. Medical records are a multipurpose tool for physicians, as they can be used in the actual treatment of patients and in their own self-protection this way during trial.
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District Court of Johnson County, KS. Case No. 10CV11069. April 14, 2014.
