Physician Legal Review & Commentary: Failure to diagnose necrotizing fasciitis yields $1.53 million jury verdict
Failure to diagnose necrotizing fasciitis yields $1.53 million jury verdict
By Jonathan D. Rubin, Esq.
Partner
Kaufman Borgeest & Ryan
Aisling Jumper, Esq.
Associate
Kaufman Borgeest & Ryan
New York, NY
Leilani Kicklighter, RN, ARM, MBA, CHSP, CPHRM, LHRM
The Kicklighter Group
Tamarac, FL
News: On May 8, 2008, a 38-year old man presented to a health clinic complaining of a cyst near his rectal area that had expanded to the testicles. Despite being referred to the emergency department, admitted to the medical center, and examined by two doctors, the plaintiff did not receive the correct diagnosis and treatment until 58 hours after he first sought medical attention. On May 11, 2008, approximately 58 hours after the plaintiff first sought medical attention, he underwent surgery to debride the necrotic tissue and remove the right testicle and the scrotal sac. Plaintiff alleges that defendants' failure to timely diagnose necrotizing fasciitis caused greater tissue loss and destruction. The jury awarded the plaintiff $1.5 million in medical expenses, lost wages, and non-economic damages. This award was later reduced to about $763,000 because of a state cap on non-economic damages in medical malpractice cases.
Background: On the evening of May 8, 2008, a 38-year old man presented to a health clinic complaining of a cyst near his rectal area that had expanded to the testicles. The plaintiff was referred to an emergency department, where a CT of his pelvis was done. The CT showed subcutaneous air, potential gas, and gangrene in the right scrotal sac and perineum. A white blood cell count was obtained that revealed an elevated count of 29,000 per cubic millimeter. The emergency personnel made a diagnosis of cellulitis/abscess and admitted him to the medical center on the morning of May 9, 2008. The medical center admitting doctor made a diagnosis of scrotal cellulitis and continued treatment with intravenous antibiotics. On the morning of May 10, 2008, the plaintiff was seen by a urology consultant, who, according to the plaintiff's complaint, also made a diagnosis of cellulitis and had "no concerns for necrotizing fasciitis." The urologist requested an infectious disease consult.
The infectious disease consult examined the plaintiff on May 10, 2008, and noted that the CT showed air in the soft tissue of the right scrotum and associated soft tissue swelling in the perineum plus right scrotal wall. He also found air along the lateral aspect of the right testis. The infectious disease consult determined that the plaintiff was at risk for necrotizing fasciitis and Fournier's gangrene, and he placed the plaintiff on NPO status that night for "likely surgery."
On the morning of May 11, 2008, the urologist consult performed surgery on the plaintiff. The urologist extensively debrided necrotic tissue and removed the right testicle and the scrotal sac. The plaintiff required an additional five surgeries between May and June 2008, which included a split-thickness graft to his penis and multiple hyperbaric oxygen treatments.
On March 8, 2010, the plaintiff sued the urologist, admitting physician and medical center (later dismissed without prejudice) with negligence. He alleged that defendants failed to appreciate in a timely manner the probable presence of necrotizing fasciitis, failed to treat the plaintiff's condition in a timely manner, failed to obtain appropriate consultations, and failed to surgically explore and debride the affected tissue. Plaintiff's experts opined that the plaintiff presented to the medical center with signs and symptoms consistent with necrotizing fasciitis, including an elevated white blood cell count. Despite these signs, the defendants failed to diagnose and treat the plaintiff's ailment for 58 hours, which in the experts' opinions exacerbated the tissue loss and destruction.
Plaintiff sought medical expenses, lost wages, and damages. Defendants argued that they provided the appropriate standard of care. On June 22, 2012, the jury awarded about $122,000 for medical expenses, about $7,700 for lost wages, and $1.4 million for non-economic damages. The total award of $1.5 million later was reduced to about $763,000, because of a state cap on non-economic damages in medical malpractice cases.
What this means for you: Any part of the body necrotic/necrotizing (dead) can be a medical challenge and a possible medical emergency. Necrotizing fasciitis is a particularly challenging medical situation and can lead to disfigurement, amputation, and death if not treated promptly and appropriately. This disease often is referred to as the result of "flesh eating bacteria." Proper diagnosis and treatment on a timely basis is essential.
Necrotizing fasciitis damages has resulted in front-page news stories. This situation is an unfortunate example of a missed or mis-diagnosis that led to a significant untoward outcome and disfigurement of a young man.
This type of diagnosis points to a medical emergency if not addressed in a timely manner. The peer review and root cause analysis would ask about the delay in obtaining the infectious disease and urology consults until the second day after admission.
While necrotizing fasciitis is a devastating disease in any area of the body, the location of this focal point, the genital area of a relatively young man, should have made this condition one of more urgency. One wonders why; the timeline and facts we are given should have pointed to a differential diagnosis to include necrotizing fasciitis, at least to the potential development if not addressed on a timely basis. There appears to be a lack of urgency to make a definitive diagnosis and initiate treatment. Again, this is a question to be addressed in the peer review and root cause analysis.
In addition to a thorough peer review including physicians from emergency medicine, infectious disease, radiology and urology, a root cause analysis should be convened that would include these same medical specialties and nursing. Depending on advice from legal counsel, a combined peer review and root cause analysis might be held. The goals from such deliberations are prevention of recurrence and education to change practices to enhance patient safety.
Based on the findings of these deliberations, educational grand rounds sessions for each specialty should be developed and implemented to re-emphasize recognition of the signs, symptoms, and need for timely diagnosis and treatment in cellulitis with a differential diagnosis of necrotizing fasciitis. With the support of the medical staff, an electronic critical pathways algorithm could be developed to assist medical staff in the timely diagnosis of this disease.
The risk management issues, in addition to the facilitation of the peer review and root cause analysis deliberations, include the disclosure meeting with medical center representatives and the patient as required by The Joint Commission and various state statutes, as well as medical ethics.
Any time there is a significant untoward outcome such as this one, the risk manager should be notified immediately. An official investigation should be initiated as soon as the risk manager is advised of this untoward event. A timeline of this patient's continuum of care would show whether there is any area of potential issues regarding the acceptable standard of care. Sometimes it is important to investigate facts early on and implement control systems to prevent the severity of a situation. Establishing a genuine relationship with the patient and their family is an important component of risk management control. With the significant disfigurement in this case, one would expect the patient would assert a claim for damages. That being said, the risk manager should notify the facility's insurance carrier and defense counsel, depending on the facility's risk financing plan (self-insured or commercial coverage). The carrier assigns defense counsel.
Reference:
United States District Court for the District of Maryland, Civil Action No. 1:10-CV-00573-PWG.
News: On May 8, 2008, a 38-year old man presented to a health clinic complaining of a cyst near his rectal area that had expanded to the testicles.Subscribe Now for Access
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