Legal Review and Commentary

$826,000 verdict after tuberculosis remains undiagnosed and untreated for more than 6 months

By Blake J. Delaney, Esq., Buchanan Ingersoll, Tampa, FL

News: An elderly man suffering from a bloody cough did not receive a bronchoscopy to examine his lower airways until six months after initially visiting his primary care physician. When initial test results from the hospital-based lab showed that the man was suffering from tuberculosis, the hospital failed to communicate these results to the man's doctors or to the health department. When the tuberculosis finally was discovered, the disease was too advanced to allow for successful treatment, and the man died soon thereafter. A jury found that the hospital and primary care physician had acted negligently, which resulted in a verdict of $826,583.

Background: An 81-year-old man visited his primary care physician, complaining of a deep cough that was producing blood. The physician prescribed antibiotics, after which the man's symptoms ceased for a period of time. However, when the cough redeveloped four months later, the physician referred his patient to a pulmonologist. The pulmonologist examined the patient and instructed him to return for a follow-up in three or four more months. Two months later, however, the man's condition worsened, and he returned to his primary care physician for treatment. The doctor ordered the patient to return to the pulmonologist so that he could perform, on an outpatient basis at a nearby hospital, a bronchoscopy, wherein a hollow, flexible tube containing a viewing device would be inserted into the man's airways to allow the visual examination of his lower airways. The doctor did not tell the pulmonologist that the man's condition had worsened over the last few months.

The results of the bronchoscopy were interpreted to be positive for tuberculosis by the hospital-based lab based on a special DNA probe of the man's culture. Nevertheless, the hospital apparently did not communicate the results to the state health department within 72 hours, as required by law, or to the pulmonologist or the man's primary care physician. Three months later, the man returned to the hospital. He was admitted, and again tuberculosis was discovered. Unfortunately, the disease was in an advanced stage, rendering successful treatment extremely difficult. The man died two weeks later from tuberculosis pneumonia.

The man's 79-year-old wife filed suit against the primary care physician, the hospital, the pulmonologist, and the pulmonologist's professional association. She faulted the primary care physician for failing to timely refer the decedent to a pulmonologist and provide the pulmonologist with all of her husband's relevant medical history. She further claimed that the hospital had acted negligently in failing to advise of the bronchoscopy test results. Experts for the plaintiff testified that the man's life could have been saved if he had received immediate treatment following the results of the bronchoscopy. The plaintiff sought damages for medical expenses, funeral expenses, pain and suffering, and loss of support and services, pointing to the fact that she had been married to the decedent for 57 years.

The defendants denied liability and claimed that the man died as the result of idiopathic pulmonary fibrosis, a disease of inflammation that results in scarring of the lungs and that has no known treatment. Although the plaintiff agreed that the man also was suffering from idiopathic pulmonary fibrosis, her experts opined that the actual cause of the man's death was the defendants' negligence.

The hospital maintained that it had, in fact, called the pulmonologist's office and communicated the results of the bronchoscopy to the office manager, but the plaintiff countered that the hospital should have insisted on speaking with a nurse. The hospital also maintained that it had reported the test results to the county health department, but the health department testified that it would have assigned a case manager to the decedent and sent a nurse to see him within 24 hours had it received such a report. Furthermore, the hospital could not submit any evidence showing that it had forwarded a written copy of the test results to the pulmonologist's office or to the county health department, as required by its own internal procedures.

During the first week of trial, the plaintiff settled with the pulmonologist and his professional association for an undisclosed amount. After trial, the jury returned a verdict in favor of the plaintiff for $826,583, including $720,000 for pain and suffering. The jury attributed 10% fault to the man's primary care physician, 75% fault to the hospital, and 15% fault to the pulmonologist's medical group, which was now a nonparty, resulting in a net award of $702,595.

What this means to you: "The verdict in the case, along with the pulmonologist's settlement, are indicative of a prevailing common denominator in adverse outcomes: failure to communicate," suggests Cheryl Whiteman, RN, MSN, HCRM, clinical risk manager for Baycare Health System in Clearwater, FL.

All of the parties involved in this scenario could have benefited from a risk manager ensuring that patient information was accurately and expediently communicated. For example, a risk manager responsible for office practices should have taken note of how the patient was bounced back and forth between the primary care physician and the specialist over six months. Indeed, the primary care physician complicated matters by failing to convey a worsening condition when he sent the patient to the pulmonologist the last time.

"Both physicians involved in this case failed to communicate the pertinent aspects in this patient's care to each other. Their communication should have included differential diagnoses, testing, follow-up, and a plan of care," notes Whiteman.

The hospital also exhibited signs of poor communication. In fact, it had little defense when it was unable to substantiate its claim that results were, in fact, communicated to the physicians and the health department, considering that it could not produce any supporting documentation. "The first step for a risk manager would be to review the process in which test results are reported," says Whiteman. She emphasizes the importance in determining the recipient of test results. In the physician office setting, it seems only reasonable that this information should go to a trained health care professional. If there is no licensed nurse in the office, it then would be necessary to report findings directly to a physician. "Clearly, an unlicensed person may not understand the importance of such information," recognizes Whiteman.

Whiteman suggests that all departments that report test results be involved in process improvement, including clear documentation of when and to whom test results were reported. Specifically, she recommends recording the name of the person to whom the results were reported and developing a monitor to determine the results of these changes. "Part of the monitor's responsibility should be to review the substantiating documentation and the time taken to report findings," notes Whiteman.

Even though a failure to communicate tests results has a serious potential for a delayed diagnosis or a missed diagnosis, as demonstrated by this case, Whiteman also acknowledges the serious concern raised by the failure to report this patient's diagnosis to the local health department. "In addition to providing another means of getting this patient treated, notification also begins a process to ensure that the community is protected from a treatable, but communicable disease," concludes Whiteman.

Reference

  • Palm Beach County (FL) Circuit Court, Case No. 50 2003 CA 011312.