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VP shunt malfunction in the emergency department
By Stephanie Rifkinson-Mann, MD, JD, Neurosurgical Consultant, Mount Kisco, NY; Attorney, New York City.
Symptoms of shunt malfunction often can be misconstrued as representing less dangerous medical conditions. Risk of a mistake in diagnosing a shunt malfunction is great, since the opportunity to prevent major morbidity and/or death is significant with early diagnosis of the problem and timely surgical correction. Hence, liability in such instances should be of concern to the ED physician.
A physician's indirect contact with a patient may not preclude the determination that a physician-patient relationship existed.1
Ashley Irvin was born with hydrocephalus and required a shunt in infancy to relieve her increased intracranial pressure. At the age of 12, Irvin developed symptoms of possible shunt malfunction, including flu-like symptoms, seizures, and neck and back pain. She was transferred from a hospital in Ulysses, Kansas, to a medical center in Kansas City on an emergent basis. She underwent shunt x-rays, which were reported to show no disruption or foreshortening of the shunt tubing, and a neurosurgical consult, at which time no evidence of a shunt malfunction was found. Since tests in Kansas City apparently revealed no other abnormalities, Irvin was discharged home.
The following month, Irvin again developed the same symptoms. She was admitted to Wesley Medical Center, where x-rays suggested that the shunt was in need of repair due to apparent foreshortening of the distal tubing, which had slipped out of the peritoneum and was embedded within the abdominal wall. The treating physician, Dr. Smith, telephoned Dr. Gilmartin for a neurological consultation. The two doctors discussed the case, and Dr. Gilmartin agreed to see Irvin the following morning. Prior to her being seen by Dr. Gilmartin, Irvin's condition deteriorated to the point that she required resuscitation and intubation. A shuntogram, the injection of a radioactive isotope into the shunt to evaluate blockage in the system, indicated a shunt obstruction, which was the cause of Irvin's injuries. Surgery was performed to correct the shunt malfunction, but Irvin suffered permanent and severe brain damage prior to undergoing the shuntogram procedure.
The trial court granted summary judgment in favor of Dr. Gilmartin, the neurologist, ruling that a physician-patient relationship had not been established in his case. On appeal, the Kansas Supreme Court affirmed. The Court initially observed that the question of whether a physician-patient relationship exists is a question of fact and noted that:
[t]he existence of the duty of care is dependent on the existence of a physician-patient relationship. … Generally, a … relationship is created only where the physician personally examines the patient … A physician's indirect contact with a patient, however, does not preclude the finding of a physician-patient relationship … Indeed, an implied physician-patient relationship may be found where the physician gives advice … through another health care professional. A physician who gives an "informal opinion" at the request of a treating physician, does not owe a duty to the patient because no physician-patient relationship is created. A physician who assumes the role of treating the patient, however, can be liable for medical malpractice.2
The Kansas court in Irvin noted that a physician's indirect contact with a patient does not preclude the finding of a physician-patient relationship.3 The Irvin court stated that Kansas law requires that the doctor must take some affirmative action with regard to treatment of a patient in order for the physician-patient relationship to be established.4After a review of cases around the country, the Kansas court held that the mere act of Dr. Gilmartin agreeing to see the patient at a later time did not establish the physician-patient relationship, reasoning that the case basically boiled down to public policy concerns. The court noted that the type of telephone conversation that took place frequently occurs in the medical profession and is vital to the treatment of patients. It refused to extend liability to doctors who act solely as an informal consultant, even where their participation in the case is extensive, since discouraging such conversations is not in the patients' or the public's best interests.
Courts have used great caution when responding to requests that they recognize legal duties within this medically important but legally ambiguous world of the curbside consultation, noting that the extension of the physician-patient relationship to include this type of informal consultation would be contrary to public policy, noting that "[i]t would have a chilling effect upon practice of medicine. It would stifle communication, education and professional association all to the detriment of the patient. The like effect … would be that such informal conferences would no longer occur."5
For the ED physician, this means that while a physician may not be held liable for medical decisions based on consultations with specialists via this rationale, this type of analysis may be state specific and different court decisions may yield different results.
Physician's appropriate consultation with specialists may not preclude findings of negligence in all cases.6
The plaintiff in this case, Darwin Green, was born with hydrocephalus and received a shunt in early infancy to drain excess cerebrospinal fluid in his ventricles and alleviate increased intracranial pressure. His shunt was revised twice by the time he was age 4. Darwin, while having limited intellectual capacity, was able to attend school, taking special education classes, and to join his family on vacation, etc.
At age 11, Darwin developed a headache for which he took Tylenol to no avail. He began to vomit and by the next day, he had developed drowsiness. He was taken to the ED at North Arundel Hospital, where Dr. Fields, the physician on duty, examined him and ordered several laboratory tests, including an emergency CT scan. Dr. Axelbaum, the radiologist at the hospital, reported several abnormalities, including multiple shunt tubes, a subdural hygroma causing mass effect on the left hemisphere, a large right-sided porencephalic cyst, and an apparent acqueductal stenosis. The radiologist concluded that these findings reflected "old changes." Dr. Fields, the ED physician, then consulted a neurologist, Dr. Mody, who cleared Darwin for discharge once the headache was relieved. Darwin was given Vicodin and then discharged, after the ED physician called Dr. Lee, Darwin's primary care physician. Following discharge, Darwin's pain recurred. His father gave him another Vicodin that evening. The next morning, still in pain, Darwin was evaluated by Dr. Lee, who noted that not only was he complaining of headache, but that he also was drowsy and staggering. Dr. Lee consulted Darwin's neurosurgeon and arranged for Darwin to go to the University of Maryland Hospital in Baltimore. Upon Darwin's arrival in the ED at the University of Maryland, his shunt was tapped and another CT scan was performed, at which time Darwin was diagnosed with a shunt malfunction and increased intracranial pressure. He was admitted to the Neurosurgery service that night although no surgery was performed, and the following morning, he suffered a cardiac arrest, which left him essentially in a chronic vegetative state, unable to communicate and completely dependent upon others for all of his care.
A claim was filed on behalf of Darwin with the Health Claims Arbitration Office in Maryland against Dr. Fields, the ED physician, and North Arundel Hospital (where the applicable standard of care allegedly was breached by failing to diagnose the shunt malfunction and that a proper diagnosis would have prevented the child's subsequent devastating injuries); the University of Maryland; and eleven physicians at the University of Maryland, alleging that he was injured by negligent care he received in the ED at North Arundel Hospital and while a patient at the University of Maryland. While the case was pending before the Health Claims Arbitration Office, the plaintiff settled with the University of Maryland defendants for $1,489,000. The remaining parties waived arbitration and a suit was filed in the Circuit Court for Baltimore City against North Arundel Hospital and Dr. Fields, the two defendants in Anne Arundel County. The case was transferred to the Circuit Court for Arundel County for proper venue. Two weeks before the start of the trial, the plaintiff asked for a postponement, adding two additional defendants, Dr. Mody, the neurologist, and Dr. Axelbaum, the radiologist at North Arundel Hospital. Both defendants filed answers to the amended complaint. At the conclusion of the plaintiff's case, the judge granted North Arundel Hospital's and Dr. Mody's motions for judgment and the jury returned verdicts in favor of Drs. Fields and Axelbaum.
In this particular lawsuit, while no liability was found on the part of the ED or Dr. Fields, the ED physician, the case demonstrates several areas in which potential liability might have arisen. The ED physician depended upon an abnormal radiological report, which was transmitted without comparison to a prior study, to assume that no shunt malfunction was occurring and transmitted this information to the neurologist, who cleared the child for discharge. While the ED physician appropriately called a neurological specialist and was not held liable for his actions, this is a situation in which symptoms of shunt malfunction need to be recognized in the ED to prevent potentially catastrophic neurological consequences. It is incumbent upon the ED physician to recognize signs and symptoms of subarachnoid hemorrhage to prevent significant morbidity or mortality associated with cerebral aneurysmal rupture.7
Although ED physicians are often involved in complex and complicated emergency situations and most medical malpractice cases settle out of court, findings of liability for medical negligence in the ED depend largely upon the state in which the action is brought. For the ED physician, this means that while the appropriate standard of care may have been met and clear documentation of the physician's decision-making exists, the credibility of witnesses, the qualifications of the experts involved, the experience of the defense attorney and his or her understanding of the medical issues at hand, the court's jury instructions, and other factors may all play a role in the ultimate outcome of the ED physician's defense.
1. Irvin v. Smith, 272 Kan. 112, 31 P.3d 934 (Kan.2001).
2. Irvin, 272 Kan. at 120, 31 P.3d at 940-41.
3. Irvin, 272 Kan. at 123, 31 P.3d at 943.
4. Irvin, supra at 941.
5. Irvin, 272 Kan at 123, 31 P.3d at 943, citing Reynolds v. Decatur Memorial Hosp., 277 Ill.App.3d 80, 86, 214 Ill.Dec. 44, 660 N.E.2d 235 (1996)..
6. Green v. North Arundel Hospital Ass'n, Inc., 126 Md.App. 394, 730 A.2d 221.
7. Rifkinson-Mann S, Rawlings C. The failure to diagnose subarachnoid hemorrhage in the emergency room and its related consequences. ED Legal Letter 2004;15:61-72.