Classic Heavy Hitters: Tricky Diagnoses That Recurrently Lead to Large Malpractice Payouts
By Gregory P. Moore, MD, JD
Attending Physician, Emergency Medicine Residency,
Madigan Army Medical Center, Tacoma, WA
Certain diagnoses have recurrently and consistently been the bane of emergency department (ED) physicians, with regard to malpractice payouts year after year. They continue to be missed, and lead to some of the larger awards. Below we present several recent typical cases to raise awareness and avoid liability.
Case 1: Encephalitis in an Infant
A 7-month-old male was taken by his father to the defendant hospital’s ED due to two days of diarrhea. The infant had a fever ranging from 102-104 degrees and had not been sitting up for several days. The fever had not responded to Tylenol. In triage, the nurse noted a rectal temperature of 104.7, pulse of 130/minute, respiratory rate 28/minute, blood pressure 98/47, and liquid yellow stool. When the infant was examined by physicians, the infant resisted movement of his thighs and knees bilaterally. Blood studies revealed a white blood count of 14.4. The infant was diagnosed with a "febrile illness" and bilateral hip dysplasia following an X-ray. The infant was discharged home with instructions to take Tylenol and follow-up. Blood cultures were found to be positive the following day. The hospital attempted to contact the family via phone, and when this was not successful, a mailgram was sent advising the family to return to the hospital.
The following day, the infant returned to the ED with fever, right-arm and right-sided trembling, and eyes that rolled back. Evaluation included a lumbar puncture, which confirmed group A Streptococcus central nervous system infection. An enhanced CT scan of the brain demonstrated infarction and cerebritis of the temporal, parietal, and occipital lobes. MRI confirmed extensive infarction of the cerebrum and extensive encephalitis. The infant suffered global, massive, and irreversible brain injury, and will require round-the-clock care for the remainder of life. The plaintiff maintained lumbar puncture should have been performed at the time of first ED visit. The defendant claimed that the child was not ill-appearing enough to require lumbar puncture on the first visit. A $3.75 million settlement was reached.1
Case 2: Meningitis in an Infant
A 3-month-old girl was taken to the ED of Reading Hospital and Medical Center. She had a fever of 103 degrees. The physician diagnosed a middle ear infection and discharged the patient with a prescription of amoxicillin. There was no documentation of which ear was infected, or what was seen in the ear. The next day, the infant was pale, cool to touch, and lethargic. She was taken to her pediatrician’s office and immediately transferred to Lehigh Valley Medical Center. After arrival, she was diagnosed with Pneumococcal meningitis, hypoxic brain injury, and hydrocephalus. She was hospitalized for almost a month. The child died two years later from respiratory complications related to the infection. During the interim, the infant had been taken to the hospital 10 times and had been seen by several medical specialists. The plaintiffs claimed that the ED physician should have ordered blood cultures and urinalysis to exclude bacteremia and meningitis. They also claimed the physician should have scheduled a follow-up visit within 24-48 hours of the first visit. The defendant claimed that the bacteremia and meningitis developed after the patient left the hospital, and the strain of pneumococcus responsible for the problems was resistant to amoxicillin. A $1.72 million verdict was returned.2
Lawsuits arguing that medical negligence contributed to an adverse patient outcome with regard to the diagnosis of bacterial meningitis are some of the most common claims filed against emergency medicine as well as pediatric physicians.3 In a retrospective review of closed pediatric cases over a 16-year period, meningitis was found to be the most common diagnosis involved in pediatric malpractice lawsuits, as well as one of the top two diagnoses seen in cases in which the child died.4 In another systematic review of malpractice lawsuits involving pediatric patients, the most severe and frequent errors were seen in the infant age group, again with meningitis being commonly seen.5 Meningitis is more frequent in the first month of life than any other period and, at times, the clinical presentation of infants and neonates with meningitis may be difficult to discern from neonatal sepsis without meningitis. It is one of the most serious of the common pediatric infections, with a fatality rate of 5-10%. Thirty percent of neonates will have long-term neurological sequelae.8
It is imperative to consider this diagnosis in any febrile child, and a lumbar puncture can be invaluable in excluding or confirming the diagnosis.
Case 3: Missed Appendicitis
A male patient came to the Biloxi Regional Medical Center ED with abdominal pain and recurrent vomiting. He was evaluated by the emergency physician. The patient had normal bowel sounds and a soft abdomen. The physician suspected simple nausea, but, nevertheless, tests were ordered. Blood tests were normal. A CT scan of the abdomen was obtained and was read by the radiologist as showing a normal appendix. The plaintiff was discharged home with the diagnosis of acute gastritis and instructed to return if his condition changed.
Two days later, the patient’s appendix ruptured, leading to a complex and difficult recovery, which included several surgeries. The plaintiff claimed negligence in failure to diagnose appendicitis at the first presentation. He also claimed that the radiologist misread the CT scan, which actually showed an abnormal appendix that was double the typical size. The radiologist settled with the plaintiff for an undisclosed amount prior to trial. The emergency physician argued that he had reasonably relied on the radiology report, and there was nothing else in his examination or other test results that indicated that the CT scan report was in error. He also claimed that the plaintiff should have returned earlier if the condition had worsened. A defense verdict was returned.6
Case 4: Missed Appendicitis
A patient, age 16, was taken to an ED suffering from abdominal pain. The patient was diagnosed with a urinary tract infection. No X-rays were taken. A surgery consultation was not obtained. The patient suffered a ruptured appendix within 6-10 hours after discharge from the emergency department. The plaintiff became septic prior to surgery being performed. The patient fully recovered after an extended hospital stay. A $325,000 settlement was reached.7
Abdominal pain is one of the most common complaints seen in the ED, and up to 50% of patients seen for the chief complaint of abdominal pain will leave the emergency department without a clear or specific diagnosis.9 Lawsuits and claims in regard to abdominal pain in the emergency department are very dependent on the age of the patient as well as the sex of the patient being evaluated.9 With regard to appendicitis, there are a few keys that may help avoid lawsuits and improve clinical judgment. CT scans of the abdomen are regularly used by physicians to discern whether a patient is suffering from appendicitis, but it is important to remember that there is a 5-8% error rate in diagnosing appendicitis. If there is continued clinical concern for the diagnosis, despite a negative CT scan, then proper follow up or consultation should be obtained.9 Urinalysis can also cloud the picture with regard to the diagnosis of appendicitis. White blood cells or red blood cells in the urine may lead to misdiagnosis as urinary infection in appendicitis patients. The key to diagnosis is high clinical suspicion and realization that presentation may be atypical. In a successfully litigated appendicitis cases, the discharge diagnosis is frequently listed as "gastroenteritis." Cautious consideration of potential appendicitis should be done before listing this as the diagnosis on the chart.
Case 5: Missed Aortic Dissection
A patient presented with chest pain and sweating and was brought by ambulance to St. Francis Hospital. She had a history of tobacco use and hypertension. The ED physician began a work up for myocardial infarction and called for a cardiology consultation. Cardiology consultation was obtained and the evaluation revealed that the chest pain radiated toward the shoulder and down the upper abdomen. An echocardiogram demonstrated moderate to severe aortic regurgitation and a widened aortic root. An initial chest X-ray showed a tortuous aorta. The plaintiffs claimed that the findings on the testing should have led to the inclusion of aortic dissection as a possible diagnosis and that a CT scan of the chest would have definitively made the correct diagnosis. A CT scan was never ordered.
On the third day of admission, a CT scan of the abdomen was obtained demonstrating the presence of an intramural aortic hematoma that was not recognized by the radiologist. The patient then underwent an esophagogastroduodenoscopy procedure. After the procedure was complete, the patient began to complain of severe pain in her legs and soon lost feeling in the legs. A CT scan of the chest was performed that revealed an ascending aortic dissection. She was taken for emergent surgery but died on the operating table. A $3 million settlement was reached.9
Aortic dissection is a relatively uncommon but potentially catastrophic illness. Early and accurate diagnosis in a patient with chest pain is key to survival. The survival rate decreases quickly, so timely diagnosis is essential. The missed diagnosis is often successfully litigated since a readily available test definitively makes the diagnosis (CT scan of the chest). In a recent analysis of 33 legal cases involving thoracic aortic aneurysm and dissection, 90% of cases that prompted legal action ended with the death of the patient, while the other 10% involved stroke or paraplegia.11
Aortic dissection is a diagnosis that should be a part of every physician’s differential when evaluating a complaint of chest or abdominal pain. Diagnosis of an aortic dissection is not always clear. Additionally, a D-dimer blood test has been advocated as a screening test. What becomes tricky in regard to its diagnosis is that dissection can occur at any level of the aorta, leading to occlusions and ischemia of any or multiple organs. This can cause a dissection to mimic a presentation similar to a primary problem of another organ.11 Another confusing factor is that about 20% of patients with diagnosed aortic pathology will not present with typical complaints usually seen in a dissection.11 Having a high clinical suspicion and keeping the diagnosis of dissection on the differential diagnosis of chest and abdominal pain patients is key. Neurologic symptoms may be present, and chest pain accompanied by neurologic complaints or findings should immediately raise the suspicion of this diagnosis.
Case 6: Missed Myocardial Infarction
A 56-year-old man went to a private emergency facility with a complaint of chest pain. He had reported two separate episodes of chest pain, with the most recent being that day. An electrocardiogram was taken at that time, which was abnormal with ST depressions in multiple leads. He was advised to go to a hospital ED for a cardiac evaluation and intervention. The patient went directly to an ED and complained of two separate episodes of substernal chest pain while en route. Two EKGs were obtained in the ED and were interpreted as a normal sinus rhythm with a septo-myocardial infarct of undetermined age. The patient had the previous EKG taken at the private facility with him. He was discharged home with an appointment to return for a stress test the next week.
The patient suffered a myocardial infarction and died three days later. A lawsuit claimed that a cardiology consult should have been obtained and the decedent should have been admitted for observation and cardiac evaluation. The plaintiff claimed that if he had been admitted, further testing would have shown abnormalities that would have led to life-saving treatment. A $750,000 settlement was reached.11
Chest pain is a common complaint seen by ED physicians. There are approximately 6 million visits per year to EDs across the country with this chief complaint.12 A missed or delayed diagnosis of a myocardial infarction can lead to significant morbidity and mortality and actually represents the greatest malpractice risk to emergency medicine physicians, making up 10-12% of all lawsuits filed and 30-35% of all monetary awards.12 It can be difficult at times to diagnose coronary artery disease and MI, particularly in those populations in which presentations are not typical. These populations tend to include young males younger than the age of 40, women younger than the age of 45, ethnic or minority groups, and the elderly population.13 Up to 25-40% of patients who are diagnosed with an MI do not have chest pain as their presenting complaint.14 Instead, in some of these trickier populations, the patient may complain of nausea/vomiting, dyspnea, abdominal pain, back pain, jaw or shoulder pain, or overall generalized weakness.14 To better care for any chest pain patient, whether elderly or young, follow American Heart Association guidelines with regard to chest pain, use clinical tools and scores to help determine who is at higher and lower risk, and be conservative with obtaining EKGs and admitting those with EKG changes, especially in a higher-risk population. It is important to take into consideration the atypical presentations of chest pain, especially in our female, elderly, and ethnic populations, and make sure to obtain an EKG and biomarkers in order to help with disposition.
In 25% of litigated cases, the ED physician failed to recognize historical and physical findings related to ischemic cardiac disease. In another 25% of litigated missed MI cases, the EKG was misread. Some of these misinterpretations were obvious, while others were subtle. Sometimes the physician failed to recognize significant changes by failing to compare the EKG with an available prior EKG.13
A few key diseases that present to EDs are responsible for the majority of money awarded in malpractice cases. These lawsuits usually involve a claim of "failure to diagnose." We have shared several typical recent cases to raise awareness. By considering these entities frequently, physician liability may be reduced.
- Anonymous Infant v. Anonymous Hospital, District of Columbia Superior Court Case no. 2008 CA 002463.
Takacs v. Reading Hospital and Medical Center, Berks County (PA) Common Pleas Court, Case No.
- Bonadio WA, MD. Medical-legal considerations related to symptom duration and patient outcome after bacterial meningitis. Am J Emerg Med 1997;15:420-423.
- Selbst SM, Friedman MJ, Singh SB. Epidemiology and etiology of malpractice lawsuits involving children in U.S. emergency departments and urgent care centers. Pediatr Emerg Care. 2005;21:165-169.
- Najaf-Zadeh A, Dubos F, Aurel M, Martinot A. Epidemiology of malpractice lawsuits in paediatrics. Acta Paediatrica 2008;97:1486-1491.
- Hill v. Seglio, Harrison County (MS) Circuit Court, Case No. 11-73.
- Mary Cotton v. Anonymous Physician Group, Multnomah County (OR) District Court, Case No. 1205-05504.
- Edwards MS, Baker CJ. (n.d). Bacterial Meningitis in the Neonate: Treatment and Outcome. In www.UpToDate.com. Retrieved December 1, 2014, from http://www.uptodate.com/contents/bacterial-meningitis-in-the-neonate-treatment-and-outcome. James G. Adams. Medical Legal issues in Emergency medicine Adams. Emergency Medicine, 2nd ed: Elsevier Health Sciences 2012.
- Ronald Lannoni, PR of the Estate of Carol Jean Iannoni , Deceased v. Christopher Bane, MD, Uchenna Olekanma, MD, et al. Cook County (IL) Circuit Court Case No. 07 L 012520.
- Elfteriades JA. Physicians should be legally liable for missing atypical aortic dissection: Con. Cardiol Clin 2010;28:245-252.
- Anonymous v. Anonymous Emergency Room Physician. Baltimore County (MD), Circuit Court, Case No. 08-C-11-005137.
- Kelly BS. Evaluation of the elderly patient with acute chest pain. Clin Geriatr Med 2007;23:327-349.
- Lee TH, Rowan GW, Weisberg MC, et al. Clinical characteristics and natural history of patients with acute myocardial infarction sent home from the emergency room. Am J Cardiol 1987;60:219-224.
- Fesmire F, Percy R, Bardoner J, et al. Usefulness of automated serial 12-lead ECG monitoring during the initial emergency department evaluation of patients with chest pain. Ann Emerg Med 1998;31:3.