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 19-year-old woman, sought treatment at a local hospital emergency department and was complaining of severe lower back pain and pelvic numbness. The woman had a prior history of bulging disks in her back. While at the emergency department, a nurse practitioner examined the patient and quickly discharged her without a complete diagnosis, but the nurse practitioner attributed the symptoms to common back pain. The physician in the emergency department failed to consult with the patient, but subsequently approved the nurse’s actions.
Two days later, the patient returned to the same hospital emergency department and was complaining of new symptoms. At this time, the patient was diagnosed with cauda equine syndrome. However, by this time, the patient had suffered serious and permanent injuries. The patient brought suit against the hospital, nurse, and physician, and she alleged that the condition should have been diagnosed during the initial visit. The defendants all denied liability. The jury found for the patient and awarded $2.5 million in damages.
Background: The patient had a prior history of bulging disks in her back. On this particular occasion, the patient did not have a bulging disk, but suffered from severe lower back pain and pelvic numbness. She was admitted to a local hospital’s emergency department. She relayed these symptoms to a nurse practitioner, who proceeded to examine the woman. After the examination, the nurse practitioner quickly discharged the patient without a complete diagnosis, but the nurse attributed the symptoms to common back pain, despite the patient’s history of bulging disks. The physician in the emergency department failed to consult with the patient, but after the discharge, the doctor apparently approved of the nurse’s actions. There was no arrangement for an MRI or any neurosurgical consultation before the patient was discharged. The patient returned to the same hospital emergency department two days later. This time the patient was suffering from urinary retention and complete loss of rectal tone. In addition to these new symptoms, the patient also revealed that the numbness from two days prior had continued.
During the second visit, the patient was diagnosed with cauda equina syndrome, a severe neurological disorder that typically is associated with a herniated disc in the lower, or lumbar, region of the back. Cauda equina syndrome is caused by excessive and prolonged compression by a disc on the cauda equina, which is a sack of nerve roots at the end of the spinal cord. The condition is considered a medical emergency, and it can lead to permanent incontinence and paralysis if not promptly treated. Common symptoms of an impending cauda equina syndrome include severe lower back pain, urinary or bowel dysfunction, motor weakness, sensory loss in the lower extremities, and saddle anesthesia, an inability to feel anything in the pelvic area. By the time this patient’s cauda equina syndrome was diagnosed, permanent injury already had been inflicted: The patient suffers from recurring nerve pain, sexual dysfunction, permanent weakness in her foot, and multiple bowel problems.
The patient brought suit against the hospital, nurse, and physician, and she claimed that the failure to diagnose the impending cauda equina syndrome amounted to medical malpractice. According to the patient and her medical experts, if the condition had been diagnosed during the first admission to the emergency department, physicians could have performed surgery to prevent further pressure and compression of the nerves.
Furthermore, the patient alleged that the care providers failed to adequately examine her by performing an extensive motor examination or assessing the sensory function of her lower extremities. The defense and its medical experts attempted to argue that a diagnosis of cauda equina syndrome cannot be made until there is evidence of bowel or bladder dysfunction, and the patient presented no symptoms in line with this evidence during the first admission, thus the diagnosis could not have been made at that time. During trial, the nurse also denied that the patient originally complained of pelvic numbness, but other emergency department records had documentd this numbness. Ultimately, the jury found all the defendants jointly and severally liable, and it awarded the patient $2.5 million in damages.
What this means to you: The healthcare providers’ liability in this case arose from a failure to timely diagnose an emergent condition, and this diagnostic failure resulted in serious and permanent injuries to the patient. Liability resulting from a failure to diagnose can arise in any medical context, although in an emergency medicine context, a failure to diagnose can result in far more serious consequences and thus greater damages in any resulting suit. However, a diagnostic error on its own does not necessarily raise the specter of liability. The ultimate question is whether the physician acted within the appropriate standard of care. This question is answered by looking at what a reasonable physician would do given the same or similar circumstances. For example, if a patient presents with a set of symptoms, and a reasonable physician would diagnose it as a certain condition, then a physician who actually diagnoses that condition given this set of symptoms is deemed to be within the standard of care, even if this diagnosis is not ultimately the correct one. The key is if a reasonable physician would make the diagnosis, despite it being incorrect given the knowledge at the time; if so, this case is not medical malpractice. Even skilled physicians make diagnostic errors when exercising reasonable care. The important part is the exercise of reasonable care.
Note also that while nurse practitioners serve an important function in busy emergency departments, they often practice under the supervision of a licensed physician. It varies from state to state whether that supervision is direct or indirect or is required at all, but knowing whether supervision must be provided is important.
Looking at the facts of this case, note that numbness indicates pressure on a nerve. It can be temporary or continual, but it is a critical diagnostic signal that must be investigated. The failure of the nurse to order follow-up diagnostic testing based on the patient’s serious complaints indicates that the nurse practitioner chose the path of least resistance and made the dangerous assumption of chronic lower back pain related to a previous history. Any assumption in medicine is always dangerous, which is why there is often an opportunity for a licensed supervising physician to review the medical records of patients seen by a nurse practitioner. Physicians must be mindful of their role when using nurse practitioners. Nurse practitioners do have advanced training and are state certified, but they are not physicians, and their liability likely will be shared by any physicians who supervise their care where state law requires such oversight.
Moreover, it is unfortunate but undeniable that some physicians simply ignore nursing documentation. In such circumstances a physician can be completely unaware of a patient’s symptoms otherwise clearly documented by nurses in the medical record. This situation can leave the liability burden solely on the physician in cases in which the hospital and the nurse are jointly named as defendants.
An important element of the diagnostic process, and a critical element to defend against potential liability, is adequate examination and testing of the patient. A healthcare provider cannot make an informed, accurate diagnosis without having access to appropriate information regarding the patient’s past medical history and current symptoms. In this case, the care providers failed to properly consider these factors when initially evaluating the patient. The patient’s past medical history revealed bulging disks in her back. According to testimony by the plaintiff’s medical experts, this factor, along with her symptoms, should have warned of cauda equina syndrome, which a reasonable physician would have recognized. Proper examination is crucial to evaluate or eliminate potential diagnoses, and a MRI or neurosurgical consultation in this case could have confirmed that the condition was far more serious than the one the nurse originally dismissed it as. Healthcare providers must perform appropriate tests or seek opinions from specialists when necessary to investigate a potential diagnosis. Failure to do such not only prevents the provider from making an accurate diagnosis, but it also opens the possibility of liability for failing to make that diagnosis.
Finally, complete and accurate documentation plays an important role in providing health services and preventing medical malpractice liability. In this case, the nurse specifically denied that the patient complained of pelvic numbness during the first admission, and if true, this situation might have helped defend the delayed diagnosis. However, there were records documenting the complaints of numbness from two other nurses in the emergency department. A difference in documentation versus testimony can easily harm an individual’s credibility with a jury, as it might appear that the individual is trying to change the facts to defend later decisions. Synchronizing and verifying that records match up with what a patient states might be necessary, especially given that an emergency department patient in particular can see several nurses, staff members, or physicians, and the patient’s symptoms or complaints can change in each instance. Steps should be taken to ensure that a patient’s medical record is consistent, accurate, and complete. If there are discrepancies, recording each instance of a complaint by the patient might help to identify and bring these forward in order to verify that the patient’s symptoms are changing, and care providers should document and explain these changes as much as possible.
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Circuit Court for Anne Arundel County, MD. Case No. 02-C-13-191807. March 10, 2015.
