Legal Review & Commentary: Hospital's failure to diagnose pulmonary embolism leads to $1 million settlement in New York
Legal Review & Commentary
Hospital's failure to diagnose pulmonary embolism leads to $1 million settlement in New York
By Jon T. Gatto, Esq., and Blake J. Delaney, Esq., Buchanan Ingersoll & Rooney PC, Tampa, FL
News: A man with a prior medical history of atrial fibrillation experienced shortness of breath and seizure-like activity two days after breaking his leg. Doctors ordered an ECG, chest X-ray, and CT scan, although there was a four-hour delay in obtaining the results of the CT scan. At about the same time that the results of the CT scan came back, the man went into cardiac arrest as a result of a pulmonary embolism and died. The man's wife sued the hospital and the emergency department physician for medical malpractice, claiming that the hospital should have been more aggressive in ruling out pulmonary embolism and that the hospital should have started her husband on an anti-coagulant even before the CT scan results came back. The plaintiff eventually dismissed the physician from the lawsuit, but the plaintiff and hospital settled for $1 million prior to trial.
Background: A 53-year-old bond salesman was on vacation visiting his sons when he fell and broke his leg. He was transported to a nearby hospital, where he received a cast and was released with instructions to remain immobile.
The man had a prior medical history of atrial fibrillation, which is an abnormal heart rhythm involving the two upper chambers of the heart and is the most common type of cardiac arrhythmia. Two days later, the man suffered an episode of atrial fibrillation, shortness of breath, seizure-like activity, profuse sweating, and syncope a temporary loss of consciousness and posture.
He was transported back to the hospital by ambulance, during which time his atrial fibrillation spontaneously converted to normal sinus rhythm before he arrived at the hospital. His other symptoms also had resolved before arrival.
Doctors at the hospital diagnosed him with syncope, seizure, acute coronary syndrome, and pulmonary embolism. An ECG was ordered, the results of which were negative for ischemia. After the ECG, the man's oxygen saturation dropped to between 91% and 94% on room air, and he was started on supplemental oxygen.
Doctors subsequently ordered a chest X-ray to investigate possible causes of the syncope, including an enlarged heart, mediastinal widening suggestive of aortic disease, a pneumothorax, and pneumonia. ED physicians initially read the X-ray films as not showing acute disease, but when a radiologist read the X-ray, he noted it was suggestive of pulmonary embolism in the right clinical setting. It is unclear whether the radiologist communicated this finding to the ED staff.
After the X-ray, doctors ordered a CT scan to evaluate possible pulmonary embolism. The CT scan was not performed, however, until about three hours later, and then doctors took another hour to read the scan. Now four hours later, doctors determined that the man had a large pulmonary embolism in his right and left pulmonary arteries. At about the same time, the man went into cardiac arrest as a result of the pulmonary embolism and died.
The man was survived by his wife and two adult sons. The man's wife, on her own behalf and on behalf of her husband, sued the hospital and the ED attending physician for medical malpractice. The plaintiff eventually dismissed the doctor and proceeded against only the hospital. She argued that the hospital should have been more aggressive in ruling out pulmonary embolism, given the man's presenting symptoms, and that the CT scan needed to be performed much sooner. She also pointed out that her husband was not started on any anticoagulant at any time during his stay in the hospital and that given his pre-test probability of pulmonary embolism and his low bleeding risk, the standard of care required that an anticoagulant be given even before the CT scan confirmed the diagnosis of pulmonary embolism. She further claimed that, given the benefits of an anticoagulant for a patient with pulmonary embolism, her husband was deprived of a substantial opportunity of survival and reasonable recovery, despite the size and location of the pulmonary embolism.
The plaintiff sought an unspecified amount in damages for her husband's pain and suffering and for loss of support and services for herself and her two children. She also sought compensatory damages relating to the loss of her husband's income, which averaged $121,000 per year since 1999.
The hospital vigorously defended the case, arguing that its work-up and treatment were appropriate and timely, given the clinical presentation. The hospital also argued that the man did not have a reasonable chance of recovery in light of the size of the pulmonary embolism and the lethality of the disease. Finally, the hospital argued that the CT scan was not performed until about three hours after it was ordered because of more urgent trauma cases.
Prior to trial, the parties settled the case for $1 million.
What this means to you: The failure to discover this patient's pulmonary embolism was the result of various converging problems, says Lynn Rosenblatt, CRRN, LHRM, risk manager at HealthSouth Sea Pines Rehabilitation Hospital in Melbourne, FL. As an initial matter, doctors and the hospital should have evaluated and analyzed the man's history to guide them in their diagnosis. "The history of this patient indicates that he had recently suffered a fractured leg, which is known to predispose the individual to development of venous embolus. Deep vein thrombosis (DVT) and the more life threatening formation of a pulmonary embolism (PE) are serious complications of orthopedic trauma and surgery," says Rosenblatt. She suggests that it is considered the standard of care to protect a patient with a fracture with anticoagulation prophylaxis such as a warfarin or low molecular-weight heparin such as an enoxaparin.
"Obviously, this did not occur when he was released from the hospital following his fracture," notes Rosenblatt. "To the contrary he was instructed to remain immobile, which is also an issue in formation of clots, particularly in the lower extremity venous system." As a result of the physician's failure to order anticoagulation, this patient returned home with a serious potential for embolus, and he also had significant mobility issues secondary to his fracture that increased his risk for clot formation even more.
A further oversight leading to the man's eventual death in this scenario relates to the fact that the patient had a pre-existing history of atrial fibrillation. An abnormal heart rhythm involving the two upper chambers of the heart also predisposes the patient to the formation of clots that originate when the heart goes into a rapid heart rate, says Rosenblatt. "Frequently the heart will shower small emboli through the vessels that causes a momentary loss of oxygen to microscopic areas of the brain. This is referred to as a transischemic attack or a TIA. The layman's term is a mini-stroke," says Rosenblatt.
The common symptoms of transischemic attack are rapidly resolving neurological symptoms, such as syncope a temporary loss of consciousness and posture. Another common neurological symptom is seizure-like activity that manifests itself in momentary fine motor tremors or a blank facial expression. The symptoms generally recede over the course of a few minutes to 24 hours, with complete return to normal functioning. "Patients with transischemic attack are at significantly higher risk for acute primary stroke," notes Rosenblatt. "A common complication of this type of cardiac arrhythmia is cardiac arrest and pulmonary embolism."
Because cardiac arrest and pulmonary embolism are not uncommon outcomes for patients with atrial fibrillation, Rosenblatt opines that this patient should have been maintained on warfarin for therapeutic anticoagulation so that the risk of clots during fibrillation would have been reduced. In addition to anticoagulation treatment, the patient also should have been prescribed digoxin to slow the heart. In fact, if such a situation becomes extreme, Rosenblatt recommends that a cardiac pacemaker be inserted.
"The scenario does not indicate if the patient had been taking any medications for his atrial fibrillation, but we do know that he apparently was not on anticoagulation. The failure of the physician who had treated the fracture to access this patient's known medical history and evaluate his situation in that regard is the preliminary root cause of the patient's untimely demise," says Rosenblatt.
Unfortunately, however, Rosenblatt observes that the standard of care continued to deteriorate even from that point forward. "A complete intake history when the patient came to the emergency room initially with his fracture should have been recorded." Given that the scenario does not indicate in any way that the patient could not provide an accurate medical history or recall what medications he routinely took, Rosenblatt notes that the patient's history was therefore either not established upon admission or was overlooked when he was released.
"This is exactly what The Joint Commission addresses in the standards applicable to patient assessment, medication reconciliation, and treatment," says Rosenblatt. This hospital, assuming it was the same one the man had gone to when he fractured his leg, had apparently failed to meet these standards. "Had that information been complied, the man would have most likely been discharged on an anticoagulant," concludes Rosenblatt.
A further aspect of this case that makes one question the hospital's established protocols for timely diagnostic intervention was the delay in obtaining a CT scan immediately. Rosenblatt observes that given this man's symptoms even without knowledge of his past history, the logical primary diagnosis was most likely a pulmonary embolism. The other differential diagnosis, such as enlarged heart, aortic disease, a pneumothorax, and pneumonia, were secondary to a presumptive clot that was at that point life endangering.
In today's technically oriented medical practice, there are a multitude of tests and scans that can almost instantly provide a probable diagnosis in which immediate and life saving treatment can be initiated. In the case of a pulmonary embolism, the common diagnostic tool is a spiral CT scan that provides near perfect visualization of the lung area and the identification of the presence of a clot. A second common test for deep vein thrombosis is a Venous Doppler, which is a type of ultrasound. "Both tests are considered the standard of care in diagnosing a venous embolus," says Rosenblatt.
Moreover, not only was time wasted getting an X-ray, which suggested the probability of a clot, but there was no evidence that the possibility of such a serious condition as a pulmonary embolism was communicated from the radiologist to the ED physician. "This would represent another breach in accreditation standards," notes Rosenblatt, "as there is a requirement that one provider or department pass off pertinent information to another department receiving the patient."
The presumption is that when the patient went for his X-ray, someone in that department was told what type of exposure the physician was seeking and why. "Because it was an ER patient, the film should have been handled on an urgent/stat basis, or a so-called wet read," says Rosenblatt. In a computerized environment, which most radiology departments have gone to, the results of the film can be quickly and accurately read by a radiologist over the Internet, with the results sent back immediately.
Unfortunately, the problems in this scenario continue as the patient prepared to undergo a CT scan. As an initial matter, the CT scan should have been ordered on a stat basis. "The request went through a three-hour window, which is not uncommon in hospital diagnostic areas, but which is unacceptable in emergency situations," says Rosenblatt. She recommends that hospitals have policies that speak to urgent and emergent situations and timeliness of interventions. "The seriousness of the situation was disregarded, and clearly a sense of urgency did not exist," observes Rosenblatt.
Rosenblatt further notes that it is unclear why the wife dismissed the physician from the lawsuit. One reason could be that the physician was an employee or agent of the hospital, in which case the hospital would have been vicariously liable for any negligence on the physician's part. And because a hospital usually has deeper pockets than a physician from which to pay any ultimate judgment, the physician's continued presence in the suit is not always necessary. But, of course, if the physician does have resources to pay some or part of a judgment, a plaintiff will generally keep the physician as a defendant in the case, unless the plaintiff thinks that the physician will provide testimony that is more favorable to the plaintiff if the physician is dismissed.
Even when a physician is an agent or employee of the hospital, the hospital is not always liable for the physician's negligence. If, for example, the physician acts outside the scope of his agency or employment, such as by acting willfully, wantonly, or in reckless disregard of the plaintiff's well-being, the hospital will be immune from vicarious liability. But proving this high standard is not undertaken lightly, as it often involves political or public relations issues, given that the hospital would be required to attack the conduct of one of its staff physicians. Moreover, hospitals frequently encounter difficulty in arguing that a physician has acted outside the scope of his employment, given the broad discretion that physicians have in exercising their professional judgment. Perhaps the most likely situation under which this argument would arise would be a physician who performs a surgical procedure in an area of medicine in which the physician is not credentialed or trained and in which the physician does not hold staff privileges. In that case, even though the physician would technically be an agent of the hospital, the physician would not have been authorized by the hospital to perform the type of procedure at issue in the case.
A second possibility as to why the physician was dismissed from the case is that the physician and the wife might have reached a confidential settlement early on in the case. Hospitals should be especially attuned to those situations in which a patient sues both the hospital and a physician for professional negligence, but then settles with the physician early on in the case, leaving the hospital as the sole remaining defendant. The settlement agreement often (if not always) provides that the settlement is not an admission of liability on the physician's part. As such, and because the physician no longer is a defendant in the lawsuit, the physician has little incentive (perhaps other than personal pride) to justify, defend, or explain his conduct. Many a hospital has seen a physician essentially concede negligence under these circumstances, and even if the physician and the hospital are not jointly liable, there is a high probability that a jury will subconsciously impute the doctor's negligence to the hospital. Although most jurisdictions permit the hospital to point out to the jury during trial the "empty chair" at the defendant's table that should be filled with the doctor, the hospital usually is strictly prohibited from referencing the fact that the physician and the patient reached a settlement agreement. The pro-plaintiff policy underlying that rule is that a jury might infer that the physician was the only liable defendant, and therefore improperly absolve the hospital of any wrongdoing whatsoever.
Clearly the wife in this scenario was correct in her allegation that had the hospital and its employees been more aggressive in their assessment of the patient, including taking an adequate history and reviewing his past medication usage, they would have arrived at the probable diagnosis of pulmonary embolism. Rosenblatt also suggests that it seems likely that had the diagnosis of pulmonary embolism been reached, appropriate interventions would have saved that man's life.
One of the overall lessons to be learned from this scenario is that a pulmonary embolism is the type of differential diagnosis that is considered a major medical emergency. In the majority of cases, physicians treat pulmonary embolism aggressively from the time the patient presents himself with definitive symptoms until the situation is resolved. "Anything less could well be a death warrant," says Rosenblatt. "In this case, the failure to initiate intravenous anticoagulation in massive doses within minutes not hours of his arrival at the emergency department was tantamount to negligence."
The hospital's position that the man's fate already was established by the time the ED staff got around to confirming what was essentially the only viable diagnosis in the first place was unconceivable, says Rosenblatt. The public, from whom juries in professional negligence trials are selected, does not want to believe that the ED to whom it trusts their lives and the lives of their loved ones "picks and chooses" the cases that are treated and those that are not. "As such, the hospital was wise to settle," notes Rosenblatt, "as once the facts were presented and opined on by experts at trial, a jury verdict would likely have been substantially higher than 1 million dollars."
Reference
- Case No. 10235/06, Nassau County (NY) Supreme Court.
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