Legal Review and Commentary

Failure to detect soft-tissue mass obstruction leads to death, confidential pretrial settlement

By Blake Delaney, Buchanan Ingersoll PC, Tampa, FL

News: After a woman began to experience difficulty breathing, she was rushed to the emergency department (ED), where doctors suspected that the woman's airway was obstructed by a large mass in her throat. The doctors sent the woman to a nearby hospital and recommended that the soft-tissue mass be surgically removed. Upon her transfer, however, the ED physician and the ear, nose, and throat (ENT) specialists declined to order a computed tomography (CT) scan of the woman's neck. They failed to surgically intervene and instead said that the woman merely had swollen tonsils. The next morning, the woman, while home alone, began to experience acute respiratory distress, and she subsequently died before paramedics could arrive. The administrator of the woman's estate brought suit against the hospital, and the parties reached a confidential settlement before trial.

Background: A woman involved in a motor vehicle accident required an extended stay at the hospital for treatment of her injuries. During this hospitalization, she underwent a tracheostomy to provide an airway and to remove secretions from her lungs. The tracheostomy tube remained in place for 60 days following the accident.

Following the patient's discharge from the hospital, she participated in a physical therapy program. The woman was slow to progress in the program because she was experiencing difficulty breathing during the exercises. One day, approximately four months after having been discharged from the hospital, the woman told her therapist that she felt as if her throat was swollen. Upon the physical therapist's suggestion, the woman's grandmother took her to the ED of a second hospital to be examined for breathing difficulties.

At the second hospital, the woman complained that she had been experiencing shortness of breath for three days and that it had been getting worse. The examining nurse noted that the patient had expiratory wheezing with exertion and that audible wheezing was apparent even away from the bedside. Recognizing the patient's previous tracheostomy, the ED physician suspected that the woman had a soft tissue mass in her throat, and he ordered chest films. The physician then consulted with another doctor in the ENT department to discuss having the softtissue mass surgically removed. The two doctors agreed to transfer the woman back to the original hospital where she had had the tracheostomy procedure performed. The referring physicians noted on the woman's transfer sheet that the woman had been seen for respiratory distress from a large mass in her throat relating to a previous tracheostomy, and that the patient was being referred to see a specialist due to the airway obstruction potential of the mass. The doctors also sent the chest films they had taken with the woman.

Upon arrival at the original hospital, an ED physician observed that the woman had experienced a worsening of respiratory distress above her baseline, and he noted that her noisy respirations became worse with activity. He diagnosed the patient as having a soft-tissue mass that was causing stridor. Although the doctor initially recorded that a CT scan of the woman's neck would be appropriate, he later crossed out the notation. Instead, he transferred her to the ENT department for future assessment and care.

The ENT team of specialists evaluated the woman and reviewed her history of ventilator dependency and previous tracheostomy. They found that the woman had large tonsils and symptoms of obstructive sleep apnea. However, the team failed to find any airway obstruction. Instead, the woman was told that she had swollen tonsils, an exacerbation of asthma, and probable obstructive sleep apnea. The ENT specialists determined that no intervention was necessary, and they discharged the woman from the hospital.

Upon discharge, the woman's friends noted that she continued to audibly wheeze during the entire 45-minute ride home. The following morning, the woman was alone in her home when she began to experience acute respiratory distress. She called 911, but she was wheezing so hard that the 911 operator had trouble understanding her speech. The woman subsequently became unable to speak, ceased to breathe, and died by the time paramedics reached her.

An autopsy revealed a round mass attached to the anterior surface of the woman's trachea. The medical examiner concluded that the mass occluded the woman's airway in a position between her trachea and vocal cords, which caused her to suffocate. The administrator of the woman's estate filed suit alleging negligence against the hospital which originally had performed the tracheostomy and which ultimately failed to discover and remove the large mass in her throat. Expert witnesses for the plaintiff testified that the defendant's failure to discover the narrowing of the woman's trachea was clear negligence and the proximate cause of the woman's death. The parties reached a confidential settlement agreement one day before trial was scheduled to begin.

What this means to you: This scenario, exemplifying an unfortunate case of missed opportunities, is all too common in the world of risk management.

"A failure-to-diagnose claim is one of the most common — if not the most common — causes of action brought by a patient alleging medical malpractice against his or her health care practitioner," says Patti L. Ellis, RN, BSN, CPHRM, LHRM, corporate risk manager at Pediatrix-Obstetrix Medical Group in Sunrise, FL. The patient in this case had several ED visits and multiple encounters with various health care providers, and yet she appears to have not received the proper level of care and treatment.

The factual scenario highlights several concerns to be addressed by the risk management departments at both hospitals involved in this case. The first concern involves whether the patient was medically stable such that she should have been transferred or discharged. If not, the physicians and hospitals may have violated the Emergency Medical Treatment and Labor Act (EMTALA). EMTALA provides that any patient who comes to a hospital's ED requesting examination or treatment for a medical condition must be provided with an appropriate medical screening examination. If the patient is suffering from an "emergency medical condition," the hospital is obligated to provide the patient with treatment until he or she is stabilized, or transfer the patient to another hospital.

"The ER [emergency room] physician at the second hospital was on the right track in suspecting a soft-tissue mass based upon the patient's clinical presentation and history of tracheostomy," notes Ellis. However, his work-up was limited to ordering chest films and seeking consult with an ENT, and his plan of care was to transfer the patient back to the original hospital where the tracheostomy was performed for further care by a specialist. "In hindsight, we have to ask whether the patient was truly medically stable for transfer," says Ellis. She also questions whether the manner of transfer was appropriate, and she notes that the scenario omits mention of whether the patient was transferred from the second hospital to the original hospital by ambulance or by private automobile.

The original hospital also may have violated EMTALA in discharging the woman following the patient's transfer from the second hospital. "There was clearly a discrepancy in diagnosis between the ER physician and the ENT consultants. Again, we have to ask whether this patient was truly medically stable at the time of her discharge," notes Ellis. Indeed, she was still experiencing respiratory distress on the way home, and she died the next morning after suffering acute respiratory distress. Ellis wonders what discharge instructions, if any, the patient received.

Ellis further questions whether the ED physician at the original hospital documented his rationale for not ordering the CT scan. Although the physician's initial plan of treatment was to obtain a CT scan of the patient's neck, Ellis wonders why he crossed out his notation. "The basis for his judgment should have been recorded in the patient's chart," says Ellis. "Such documentation makes it easier to defend the actions or inactions of a physician years down the road in a courtroom facing a jury."

Finally, Ellis notes that the ED nurse at the second hospital who recognized the patient's wheezing possibly should have taken a greater role in advocating for her patient, especially given the patient's recent history and clinical presentation. "The ER setting should be high on the risk manager's list for evaluating risk and initiating opportunities for critical thinking, process improvement, patient safety, and avoidance of malpractice," suggests Ellis. Ellis emphasizes that good record-keeping is critical. "Documenting a physician's rationale underlying his or her medical judgment for interventions — or lack thereof, recording both negative and positive findings, and making note of differences in medical judgment between health care providers are all effective risk avoidance methods," she concludes.