(originally printed in March 08):
A 35-year-old presents to the ED complaining of a swollen tongue of several hours duration. On arrival, he is having difficulty breathing and speaking. He believes that he is having an allergic reaction to erythromycin that was prescribed by his primary care physician. When he arrived, he told the medical staff that he had a heart murmur. In triage, the patient had a fever of 102 degrees and was mildly anemic. By the time the patient was evaluated by the physician, his tongue swelling had gone down. The EP called the patient’s primary care physician and discussed the case. The patient was instructed to see his primary care physician as soon as possible and went to see his physician that same day.
Four weeks later, the patient’s fever persisted and he went to another physician for further evaluation. At that time, he was diagnosed with subacute bacterial endocarditisa, immediately admitted to the hospital and was started on intravenous antibiotic therapy. During the third week of inpatient treatment, the patient suffered a significant stroke. The patient then filed a lawsuit alleging that the EP should have tested him for endocarditis during his ED visit seven weeks before he had his stroke. Because the EP failed to perform testing for endocarditis, the patient alleged that his treatment was delayed, causing him to have a stroke.
During depositions, the defendant EP testified that he knew the plaintiff had a fever during his examination but did not know the cause of the fever. He denied hearing the murmur, even though the PCP had previously testified that the patient’s murmur was “quite noticeable” and could have been heard just by putting an ear to plaintiff’s chest. The EP admitted that the patient probably did have a heart murmur during his ED visit even though he had failed to hear this murmur. He also acknowledged that subacute bacterial endocarditis should be considered in a patient with a fever of unknown origin and a heart murmur and speculated that if he had heard the murmur when he examined the patient, he might have diagnosed the patient’s endocarditis.
The plaintiff’s expert testified that the patient had symptoms typical of endocarditis and that diagnosis of endocarditis during the patient’s ED visit would have led to a good recovery. The expert testified that endocarditis often presents as a combination of a fever and a heart murmur, and that the failure to diagnose endocarditis would inevitably lead to the patient’s death. Finally, the expert gave the opinion that if the EP had performed a proper H and P, the appropriate testing would have been performed and the patient’s stroke would not have occurred.
Continue Next for the result from Dr. Sullivan's
EP loses big for not spotting diagnosis that was not related to the chief complaint. After a trial, the jury entered an $18.5 million judgment against the emergency physician and the hospital.
Another look at the facts:
In this case, the facts were taken from the appellate court’s opinion, so they may be incomplete in some regards. The plaintiff alleged that the emergency physician was negligent because he failed to detect the plaintiff’s endocarditis and alleged that the emergency physician’s negligence was a direct cause of the patient’s stroke.
The patient’s presenting complaints included tongue swelling, difficulty breathing, and difficulty speaking which were presumably a reaction to the antibiotic that the patient had already been taking. The court opinion did not state why the patient was taking an antibiotic. Although the symptoms for which the patient sought care had resolved without treatment by the time that the physician evaluated the patient, the question remained as to whether the patient had endocarditis during his emergency department visit.
How should a reasonably well qualified emergency physician treat a patient who was already taking oral antibiotics and who had transient swelling of the tongue, transient difficulty breathing, and transient difficulty speaking with a fever of 102 degrees and no source?
How the case was decided:
The plaintiff’s expert testified that endocarditis often presents as a fever and a heart murmur and that an appropriate history and physical examination would have led to appropriate testing and would have averted the patient’s stroke.
There was one piece of the puzzle missing, though. The physician did not hear a heart murmur and the expert did not state whether a heart murmur likely existed or whether the physician would have been negligent for failing to hear the heart murmur. Unfortunately, this is where the physician hurt himself. During his testimony, the physician admitted that the patient probably did have a heart murmur during his ED visit, that he failed to hear the patient’s murmur, that endocarditis should have been considered given the patient’s symptoms and that he might have diagnosed the patient’s endocarditis if he had heard the patient’s heart murmur.
When viewed as a whole, the physician’s testimony amounted to an admission of his own negligence. The appellate court used the physician’s testimony against him, holding that “while plaintiff’s expert did not specifically say that the appropriate standard of care required [the ED physician to hear the] murmur, it is inconceivable that the correct standard of care would not have required him to hear plaintiff’s ‘quite noticeable’ defect once he had determined it important to listen to the plaintiff’s heart.” Had the physician instead testified that he uses a stethoscope every day, that it is sometimes difficult to hear heart murmurs in the noisy emergency department, and that the patient’s presenting symptoms of tongue swelling, dyspnea and difficulty speaking are not symptoms of endocarditis, and that the standard of care does not require emergency physicians to diagnose every possible disorder a patient might have, perhaps the case may have been decided differently.
Aside from the standard of care, this case also presented an issue as to whether the physician’s alleged negligence caused the patient’s stroke. Recall that there was a 7 week time delay between the patient’s emergency department visit and the patient’s stroke. Also recall that the patient visited more than one physician after his emergency department visit and was receiving intravenous antibiotics for three weeks before the stroke occurred. Another way of assessing causation is the “but for” test: But for the physician’s negligence would the patient have incurred damages? In other words, to a reasonable degree of medical certainty, if the physician had successfully diagnosed subacute endocarditis, would the patient still have had a stroke? I believe that there are too many other intervening factors for a direct causal link to be drawn between the patient’s stroke and the emergency physician’s care. Negligence by the patient’s other treating physicians and the patient’s own contributory negligence, if present, need to be considered. Did the stroke actually result from the patient’s vegetation or was there another source for the emboli? In addition, it is difficult quantify how much the patient’s risk of stroke increased due to a delay in diagnosis. If there was little or no increased risk, then the physician’s alleged negligence did not cause any additional damages to the patient. The appellate court even noted that the defense attorneys failed to elicit a basis for the plaintiffs expert’s opinion that “had it not been for the negligence of [the ED physician] the stroke would not have occurred.”
My verdict is that the physician may have needed better legal representation. Even though I believe the physician’s actions met the standard of care, his apparent lack of trial preparation caused him to admit negligence during court testimony. The issues in this case underscore the importance of finding a knowledgeable and experienced defense attorney when you have been accused of medical malpractice.