Your chance to be the jury
When it comes to establishing a standard of care, we at Emergency Physicians Monthly are kind of old fashioned: We think it should be generated by physicians, not trial lawyers. That’s why we introduced the Standard of Care project. We present to you a real life medico-legal scenario and you get the chance to weigh in.Send your thoughts on this case to This email address is being protected from spambots. You need JavaScript enabled to view it. . We’ll compile the results and print them next month. 
by William Sullivan, DO, JD 
A 41-year-old male went to the emergency department complaining of sharp left-sided headache, runny nose, and productive cough which began the morning of presentation. He also complained of blurriness and “fluttering lights” in his right eye that were initially significant, but that had improved by the time he reached the emergency department. The patient had a history of hypertension, coronary artery disease, and longstanding vision loss in his left eye. He also had a history of headaches. Social history was positive for cigarette use.

His vital signs were essentially normal, including a blood pressure of 147/77. The patient was alert and oriented. Visual acuities were 20/20 in the patient’s right eye, and his funduscopic examination was normal. There were no neurologic deficits noted on the physical examination.

A chest X-ray was normal. A CT scan of the patient’s head showed mucosal thickening in both ethmoid sinuses and in the right sphenoid sinus. There were no signs of bleed, shift, or infarct.

The patient received an albuterol treatment and was discharged with a diagnosis of “sinusitis and acute visual changes.” He was prescribed antibiotics, pain medication and cough medication. He was instructed to follow up with the ophthalmologist later that day to rule out a detached retina.

While being examined by the ophthalmologist an hour later, the patient became lethargic and diaphoretic. He then developed right-sided hemiparesis and aphasia.

The ophthalmologist sent the patient back to the emergency department by ambulance. At that time, the patient was aphasic and not moving his extremities. A repeat CT scan of the head showed several new findings including a density in the left middle cerebral artery and a hypodensity in the left parietal region.

The patient received tPA in the emergency department and was transferred to another hospital where he was diagnosed with a left carotid artery dissection. A clot at the dissection site dislodged and caused the patient to have a left parietal infarct.

The patient is currently unable to walk without the help of a brace and a cane and has difficulty speaking more than a few words at a time.

The patient and his family sued the physician, stating that he should have diagnosed the patient’s condition on the first visit. 

Were the emergency physician’s actions within the standard of care?
Let us know by emailing This email address is being protected from spambots. You need JavaScript enabled to view it. or by posting your comment below. We will compile the reader results and publish them in an upcoming issue.



# Emergency PhysicianGreg Palmer 2008-10-05 17:08
I have no doubt that I would have missed the diagnosis, and I've been practicing emergency medicine for over 30 years. This is just another one of those "there but for the grace of God go I" cases. It's another confirmation of the old adages, that ""it's better to be lucky than smart."

Both the work up and refer meet the Standard of Care in my community.
# Navdeep Gill 2008-10-16 17:30
I would have missed it-normal neuro, visual acuity-one would think retinal detachment, 'visual' migraine etc-but carotid dissection?
The standard of care was met.
To dissect the case a bit more-did the headache resolve? How severe was it. Did he have previous hx of such headaches? I rarely diagnose ppl with sinusitis based on CT scan thickening of sinuses-where I practice almost everyone has that without having clinical signs of sinusitis.
# Emergency PhysicianGlenn Saperstein 2008-10-16 17:36
With the information that has been provided, I would agree with Dr. Palmer, that this does in fact meet the Standard of Care, in my community as well.
# Reed Brozen 2008-10-16 17:41
Tough case and bad luck with several red herrings. I would want a little more info such as the vision changes improved or resolved completely? How bad was the headache and what was the onset like? Runny nose and productive cough are a bit misleading. To diagnose sinusitis there is supposed to be 4 days of purulent drainage but here we have a CT scan with sphenoid sinusitis (there are still a few people left that think all those whould be admitted for IV antibiotics - I have seen some very severe complications from sphenoid sinusitis) and some other symptoms to go with it (including the type of headache the patient is experiencing). I doubt I would have picked this up or will if I see one now and I think the doc did due dilligence with CT scan, but this would have been one that made me nervous needing to invoke 2 diagnoses and without a better feeling about the answer. I would be an expert for the defense not the prosecution. The patient had a bad outcome but I don't think it is the doctors fault.
# David Kaminski 2008-10-16 17:55
I don't know what I would have done within the ED with this patient, but I must admit - while reading the case presentation I was anticipating a carotid dissection. If a CVA with any ongoing symptoms is suspected, I will consider admission for further evaluation, including carotid U/S. I don't usually order carotid U/S's out of the ED itself. In turn, I think the standard of care was met, as the case presentation says there were no neurologic findings on exam and close follow up to address the leading issues on the diff. dx was arranged.

My second 'big issue' question is: Even if faulted for an incomplete work up, why should the physician be liable? This issue of liability is strange to me. The physician didn't cause the dissection, he didn't start the process, he didn't assault the man and do harm. He attempted to treat the patient with all good intention. Why should he be liable ? I know the law defines this, but I think the criteria for liability and the responsibility forced upon health care providers is inappropriate.
# MDMike McCormack 2008-10-16 18:09
I think a negative exam and a non contributory CT scan would have made it very difficult to diagnose this condition,The standard was met.
# E.R. Physician.Perumunda Sharma, MD. 2008-10-16 19:29
This is a clear example to show that one always has to be vigilant for the 'zebras' that show up in the ED. A sharp sudden headache is mostly vascular in origin. Having said that, it is our responsibility to rule out life-threatenin g or severe debilitating conditions like SAH, other intra-cerebral bleeds, temporal arteritis, carotid dissection and aortic arch dissection that extends to the carotids or vertebrals.
A carotid ultrasound should have been done before discharge.
I had a similar case about two years ago in a 55 year old male. This person did not have visual symptoms but only sudden one-sided headache. I ordered an ultrasound and it did show the carotid dissection.
# ER Physician.Perumunda Sharma, MD. 2008-10-16 19:36
Addendum to my comment.
I understand that the patient was discharged with the diagnosis "sinusitis and acute visual changes". We have to be extremely cautious to send someone out of the ED with such diagnosis. Sinusitis does not cause acute visual changes.
# Board member, NYS Office of Professional Medical Conductalexander kuehl MD, MPH,FACEP, FACS, 2008-10-16 19:49
Unless most every headache is going to get a carotid ultrasound , the standard was met.

Dr Sharma's comment about ruling out the truly bad possible diagnoses is well taken; that is why some risk management consultants recommend a spiral CT for any undiagnosed chest pain case.
# MDChristian mannsfeld 2008-10-16 19:58
TIA = admission and further evaluation. I certainly would have missed the dissection, but it would have been revealed by the inpatient work-up.
# ER PhysicianDennis Williams 2008-10-16 20:24
He was seen by the ophthalmologist within ONE hour and deteriorated. In my facility you can't get an inpatient ophth consult in one hour. He most certainly would have had the same outcome had he been admitted for "TIA" (don't know how you come up with this diagnosis on initial presentation) vs. the appropriate referral. The d/c diagnosis was sinusitis "and" visual changes. Not sinusitis "with" visual changes. As Dr. Palmer stated, "but for the grace of God, there go I". His visual changes were improving and negative neuro exam. The workup and referral met standard of care.
# Emergency physicianStephen Scherr 2008-10-16 20:34
I think the standard of care was definitely met. The ED physician addressed the headache complaint appropriately, addressed his upper respiratory complaints appropriately, and got the patient excellent Ophthalmologic consultation in a reasonable time period to address the eye complaints. To suggest the converse that anyone presenting to the ED with those complaints (without other neurological findings or complaints)now requires a carotid ultrasound or CT angiogram with contrast as the "standard of care" is ridiculous. The patient's lawsuit is a classic case of "retrospective scope" medicine, and we should not support or feed that mentality. I believe the care was exemplary and met or exceeded the standard of care in my community. I concur with Dr Palmer's comments above. And as an aside, of the 4 opportunities I have had to push TPA in stroke, 2 of the 4 cases ended up being carotid artery dissections presenting with hemiplegia with ALOC or aphasia, with large MCA blood clots.
# Emergency PhysicianSal Monella 2008-10-16 20:43
Based on the information available, it appears that the standard of care was met. Looking back, the diagnosis of TIA is correct, and I agree would require admission, but I doubt that I would have made that diagnosis based on the info available at the time of presentation. Furthermore, the pateint deteriorated within an hour of discharge while at the ophthalmologist having his complaint investigated. The outcome was inevitable. If the CVA occurred 2-3 days later, and no follow up provided....... ..perhaps a different story.
# D.O.Sean Vitale 2008-10-16 20:45
Monday morning quarterbacking. ....hate it!! But it is necessary evil in our profession. Like others that have written, I needed more inofrmation about this pt. However, having read this, I will be sure to listen carefully to the carotids of my future headache pt's. But this is a Dx could still escape me and others. It dont think it is a reasonable standard to ultrasound every headache to catch this zebra.....but I promise it will now cross my mind. As a constant student of our profession, would love to know what people infinitely smarter than me suggest!!
# MD, Emergency MedicineJessica Racusin 2008-10-16 22:55
The patient complained of a headache. This was worked up appropriately with a head CT. He had ophthalmic complaints and was seen with in ONE HOUR by an ophthalmologist . His neuro exam was normal and symptoms were improving, and he was stable. In determining liability isn't part of it what a "reasonable physician" would do? This is certainly what any ED doc I know would do. We can't be expected to do every single possible test for every possible rare diagnosis every single time. We already drive our health care costs up with defensive medicine. This patient recieved good care. And what if he had been admitted with a neuro consult? Would that have prevented him from having a bad outcome within ONE HOUR? Extremely doubtful. It was a tragic outcome but it's nobody's fault, unfortunately sometimes bad things happen with nobody to blame.
# Ophthalmology, Emergency MedicineDavid Milstein 2008-10-17 00:47
Would like to know if any pulses were checked by the EP or ophthalmologist and whether there was any asymmetry noted in the palpated carotid pulses or if bruits were ever noted. We still check those things don't we? Other than these questions, the EP met the standard of care. Even if the diagnosis had been made in the ED, the ischemic event would have occurred anyway as part of the natural history of this cf this patient's condition. 'S' happens. Don't smoke.
# My favorite questionDr. Sue 2008-10-17 01:14
I agree that the ED physician met the standard of care in this case. I probably would have missed this diagnosis too.

That being said, I am reminded of several memorable patients I have diagnosed in the past with "zebra" conditions based upon the answer to a single intern-level question: "Is there anything different about this [headache/abdom inal pain/back pain/etc.] from your typical [headaches/abdo minal pains/back pains/etc.]? I had a young obese female patient with a history of migraines, chronic pain, and possible narcotic overuse, who came in to my ED with a headache that was "different" than her typical migraines (no "aura", did not respond to typical migraine treatment either at home or in the ED, and was bilateral rather than unilateral). It turned out she had an acute parenchymal ICH - thankfully picked up on CT scan after she failed to respond to her typical ED treatment regimen. Perhaps the patient described in the case above would have raised more "red flags" if he had said, "This is the worst headache of my life!", or "This is different from any headache I've ever had before", or "This headache came on with a thunderclap!" A single additional question in the H&P has saved my bacon more than once!
# EPJuan Nieto 2008-10-17 04:41
Based on the patient's history and lack of findings on physical exam and imaging,
the work-up that this patient received was appropriate. There was no mention of treatment and if the headache was completely resolved prior to leaving the ED but I assume the patient appeared well. I am impressed that the patient was seen so soon by an ophthalmologist ! The question is: What else could the EP have done to diagnose the patient's condition ? I do not think that there was enough evidence to justify an MRA at the time of his visit to his ED. Zebras will always continue to bafffle us in ED as medicine is not perfect. The ED in this situation practiced within the standard of care.
# Walking in a minefield and a culture of blameWes 2008-10-17 16:46
Agree with Dr. Kuehl, as the case is presented, standard of care met (I assume the history and ROS was more complete than presented). The more common concern (an more likely) would be retinal detachment. The evaluation process was entirely appropriate (i.e., the next step is an Ophthalmology evaluation). Within the time-line presented, it would not be reasonable to expect any different outcome. The cause/effect was not related to his visit but due to the natural course of the disease.

I would have likely missed this diagnosis as well. However, I think that if the patient did not have any eye pathology to explain his symptoms, and the clot dislodges a day later (for example), the case becomes less black and white (i.e., the outcome may have been more preventable, but that would require a more detailed review of the patient's encounter).
# Robert J. Geller, D.O. 2008-10-17 19:37
I agree that the standard of care was met. I am sure I would have missed this diagnosis as well. From the H&P I have no idea how you could diagnosis of a carotid dissection.

Robert J. Geller, D.O.
# Standard of Care MetJim Mensching, DO, FACEP, FAAEM 2008-10-17 23:12
A true zebra given the presentation and final diagnosis. Truly, there but for the grace of God go I. Thankfully the standard of care is based not on doing the absolute best but what a reasonable ED physician would do under similar clinical circumstances. Remember that attempting to prove a negative can expose patients to unintended iatrogenic morbidities (i.e. radiation exposure, dye reaction, procedrual complications, etc.). Either way I'm sure the physician will be paying out on this one.
# FAAEMRobert Oliver, M.D. 2008-10-18 00:07
My colleague diagnosed a similar case in our ED 10 years ago because he had seen one at Stanford in residency.With only one eye working and normal funduscopic exam one thinks of cortical events, migraine and the like. Two separate sets of complaints-the URI and the headache with visul changes. The treatment of URI as described was not to our standard. The examination and documentation of neck pulses, temporal artery pulses may have saved a suit or found the dissection. the headache workup should also have included an LP for bleed to find the 2-8% whose CT's are nondiagnostic. This patient was in the throes of his disease no matter how quickly he moved to U/S and TPA as it cannot be done in less than an hour.
# Nana Dwomoh, D.O. 2008-10-18 06:57
I think the standard of care was met.
# carotid dissectionRicardo Machado 2008-10-18 09:21
I have seen 3 carotid dissections in my career and I wonder as time goes by how many I have missed. This is an elussive diagnosis and easily missed because of the none specific findings that may initially present with it. Not to mention the people that have minimal symptoms and never seek care and heal spontaneously. Without anterior neck pain or history of trauma it is a difficult diagnosis not to add the significant amount of people that present with high dissections that are not seen with ultrasound or even CT angio, have had 2 of those. The presentation was far from classic and the workup was reasonable. It was an unfortunate outcome but bad outcome does not equate malpractice. Standard of care was met.
# Standard MetTom Richardson, M.D. 2008-10-18 18:30
I think 98% of ED docs would have done exactly what this doctor did, including me, and that is what you base a "standard" on, not what an academician who has time to look at every "zebra" such as "House" would do. If you find it, you look like a genious, but if you don't, you shouldn't be held to blame.
# ED PhysicianDavid Shumway MD 2008-10-18 19:08
I would have probably missed this one also. There are some questions I would have paid attention to. Why was the patient blind in his left eye? The patient seemed to be a vasculopath, so were there any carotid studies to review in the past? My sense of urgency for opthalomogic referral would also be within the timeline as in this case. To have provided documentation that carotid pulses and bruies were checked would strengthen the argument that all appropriate areas were examined. The finding of a sharp left sided headache with right vision symptoms does make me think vascular. Hopefully notes on the ED record would reflect the complexity of decision making and consideration of pertinant negatives. One could wonder whether giving TPA was the right thing to do, and how and when the diagnosis of carotid disection was actually made. Doing untrasounds within the ED is out of the question at my place. Standard of care met!
# emergency physicianmarcel cesar 2008-10-19 07:00
Standard of care met. The emergent opthalmology referral was appropriate for the best tentative diagnosis. Acute bacterial sinusitis unlikely based on duration of sxs.
# SOC metThomas Gray 2008-10-19 16:51
Standard of Care met. ED MD did everything that could reasonably be expected at first visit and then some -- ophthal eval w/i 1 hr!! Well done. Unfortunately pt had several comorbidities that clouded his sx at initial presentation. And IF further testing had been pursued while in the ED ie, cerebral MRA, it would not have affected outcome. The ED MD did what any ED MD would have done in similar circumstances. As is often the case, progression of disease w observation over time makes the cause more apparent.
# What?E. D. Doc, MD 2008-10-20 02:08
How many ischemic strokes present with headaches anyway? The money-grubbing family and lawyer met their standard, albeit low.
# Missing informationTreating Physician 2008-10-21 18:56
What is missing from the case presentation is that the patient had a history of the same visual disturbance several years ago and was seen by the same ophthamologist for this, and was told to return to his office immediately if it ever occurred again. His vision in that eye was 20/20 when I assessed him. During the trial, it was learned that he had had some sort of retinal edema that first time.
# Treating Physician 2008-10-21 18:57
Also, the left eye was blind from traumatic injury at 3yo.
# Missing informationTreating physician 2008-10-21 19:05
Just reread the case. One more thing, the URI hadn't started that day, but about a week ago.
# ER DOCMario 2008-10-22 01:36
Recently I had a similar case, but fortunately, it already had been suspected by the patient's ophthalmologist and was sent to me for confirmation with emergency MRA. However, this case had distinct neuro signs including a constricted pupil and intermittent ptosis on the affected side.

I would have to say that without neurological findings I would find it very difficult to make the diagnosis in the case presented. So I would have to say that the case presented met the standard of care.
# Director of Emergency Medical Services Punxsutawney Area HospT Clark Simpson MD 2008-10-27 19:19
I have been in EM for over 10 years and the work-up was complete and thorough. If anything the work-up was exhaustive. I have no doubt that I would have missed this. The EP should not be held liable for this.
# Emergency PhysicianMichael Alter 2008-10-31 03:34
tough case ...I'm sure I'd of missed it too. truly a many headaches do we see every thing I do on all my headaches is listen for a bruit...was this much pressure to make the diagnosis, avoid excessive radiation, contain costs...what's a doc to do with such and unusual presentation... to make this diagnosis one would have to be very lucky on a currently asymptomatic patient. You certainly met the standard of care in my book...hope your documentation was good. The med mal situation in this country is so out of control it disgusts me, bad outcome does not equal malpractice in other countries, only in the US
# I AGREE TRULY A MINE FIELDER Doctor 2008-11-06 19:54
I just graduated residency in July. Started my first job in August. And I'm scared as heck that I'm going to get sued. Pt's and families get upset by every little thing. It's like I have malicious intentions or I'm out to get them. I can already see myself burning out and getting fed up with this crap! I think 99.9% of ER Physicians would have missed this diagnosis. I think 80% of ER physicians would NOT have gotten this patient to an ophthalmologist the SAME DAY! I agree that standard of care has been met. And yes unfortunately in the USA, a bad outcome or delayed dx or an unexpected event = malpractice law suit. As if our medcial infrastructure doesn't have enough problems as it is.
# I had the same symptoms!A patient 2008-11-07 10:27
I think the ER docs met the standard of care. A few years ago, I went to the ER because I'd been suffering from a terrible headache. I had a lot of the symptoms this patient had. The doctor did a cat scan and said I had a major sinus infection. He gave me antibiotics, pain medication for the headache and sent me home. I'm still here, so I guess he was!
# SERIES AUTHOR - Real CaseWilliam Sullivan, DO JD 2008-11-21 19:30
I don't want to give away the answer before the verdict is published, although I think that everyone is right on with their comments.
This was an actual case taken from a jury verdict reporter.
It is amazing that the doctor sued in this case is here to comment on the case as well. Hopefully these comments show you that you are practicing good medicine, doc.
I'd be happy to e-mail a copy of the case as it was reported in the jury verdict reports to anyone that is interested. Just e-mail me at
By the way, if any of you have any plaintiff or defense expert depositions you'd like the EPM readers to weigh in on, e-mail them to me at the address above. I'll read through them and summarize them and we'll put them in print.
Next month I'm going to look at a different aspect of how we determine the standard of care.
# This was not only a Zebra....Adan Atriham 2008-12-09 17:25
This was a weird Zebra !!! I think the doctor did a good job and met standard of care. I would have sent that patient home too, follow up ophthalmology in the same day... (that's unheard in my side of the tracks), CT with normal brain, no mention of neck pain and non-focal neuro exam. This was a very low punch. Now, to complete the legality of this case. The doc had a "duty", which was fulfilled with he saw the patient, there was not "bridge of that duty". Then we have a negative outcome ("harm"), but when it comes to "causality", the doc didn't cause the disection and going even further, the plaintiff has now to prove that the embolic event was caused by the failure to diagnosed. The natural history of this disease is to dislodge a clot, even with a heparin drip.
So, I don't think is fare.
# James Felberg 2009-03-14 09:43
Without question met the standard of care.

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