Legal Review & Commentary

Settlement for alleged failure to diagnose

Confidential settlement reached in NC

By Radha V. Bachman, Esq.

Buchanan, Ingersoll & Rooney, P.C.

Tampa, FL

and Leilani Kicklighter, RN, ARM, MBA, CHSP, CPHRM, LHRM

The Kicklighter Group

Tamarac, FL

News: After returning to North Carolina following a trip, a young man presented at his local hospital feeling ill. The man was seen by a physician, and a chest radiograph was ordered. The physician ordering the test and the radiologist interpreting the test noted different findings, and there was later a disagreement as to whether the two physicians met to discuss the contrary findings. Within two months, the man had died as a result of an apparent fungal lung infection, which had developed during the man's trip to California. The man's estate filed a lawsuit, and a confidential settlement was reached with the hospital after a jury found the hospital liable but before the damages phase of the trial commenced.

Background: Shortly after returning to North Carolina after visiting family in California, a 24-year-old man began to feel ill and went to his local hospital. The man was seen by an internist who ordered a chest radiograph. The test was read by the internist and the hospital's board certified radiologist. The internist diagnosed the man with pneumonia, and the radiologist saw a "diffuse micronodular pattern . . . associated with tuberculosis or acute histoplasmosis," which required clinical correlation with the internist's diagnosis. The radiologist later claimed, at trial, that he met with the internist to discuss the findings, but this allegation was denied by the internist.

Ultimately, the man's condition worsened, and he died two short months later from a fungal lung infection. The infection apparently was caused by exposure to fungal spores that cause coccidiodycosis, a lung disease known as "Valley Fever," while in California.

The man's mother brought suit on behalf of her son's estate and claimed that the failure to timely diagnose and treat her son for a fungal lung infection was the proximate cause of his premature death. The mother alleged that the failure of the physicians to adhere to hospital policy requiring the radiologist to fill out a discrepancy report was a breach of the standard of care. The radiologist admitted at trial that he had not filled out such a report.

The defendants countered the plaintiff's allegations by arguing that no treatment could have prevented the man's death, as the infection already had moved from the patient's lungs to his brain at the time he presented to the hospital.

The judge bifurcated the trial into two phases, the first dealing with the defendants' liability, and the second focusing on the plaintiff's damages. The bifurcation was ordered due to a question surrounding the rightful heirs of the man's estate. The initial phase jury found liability on the part of the hospital but cleared the internist in its verdict. Before the damages phase of the trial commenced, the hospital and the plaintiff reached a confidential settlement.

The lawyer who represented the man's estate was quoted in "Lawyers Weekly" as saying, "The major significance of this case involves the corporate negligence theories we advanced and supported with the evidence, and which the jury clearly based its verdict upon." Other lawyers in the case saw the claim as one where the plaintiff relied strictly on the failure of a hospital to follow its own policies and procedures for reporting important information from radiographs to the appropriate physician.

What this means to you: A healthy young man comes in for a chest X-ray that shows abnormalities. There is a discrepancy between the ordering internist and the radiologist as to what the films reflected. From there, things went awry and ended in the death of the patient. What a sad outcome.

It is unclear if the internist was the patient's private physician, the emergency department (ED) physician, or the on-call internist. It is further unclear if the internist read the film as a "wet read" — a preliminary read in the ED — or if the internist went to the radiology department and read the films. If the films were read in the ED, the usual procedure is for the ED physician to note the preliminary read on the film that is considered by the reading radiologist against the official reading. If there is a discrepancy between the official read, done by the radiologist, and the ED physician's wet read, the radiologist usually calls the physician who did the initial wet read to advise of the discrepancy and documents in the dictation that the physician was contacted. Part of this process is to track the discrepancies for trends and patterns by type of film and physician as a component of the quality improvement program.

There is also a reference to the radiologist's failure to complete a discrepancy report, but we have no further information regarding this program. One wonders exactly what such a report would provide in this situation, to whom the report would be sent, and how it would have provoked a timely patient care intervention.

This situation is another example of how important documentation, or in this case, lack of documentation, can be. The hospital and radiologist were held responsible in this case, but not the internist. Discussion in this scenario relates to failure to follow established hospital policy and procedure to document the discrepancy. The radiologist claims he did discuss his findings with the internist, but that discussion was not documented. Documentation by either physician might have addressed this particular issue in this lawsuit, but one wonders whether it would have been the basis of a correct diagnosis.

A root cause analysis of this situation would determine why the communication between the internist and the radiologist failed and how the process can be emphasized. However, this case begs the question why the patient's signs, symptoms, and history, over the last two months of his young life with a diagnosis of pneumonia, didn't lead to the correct diagnosis and treatment. If this patient were followed by the internist and the pneumonia was not resolving, why wasn't another chest X-ray taken or an infectious disease specialist brought in to consult? It would be appropriate for the risk manager to refer this case to peer review and to medical grand rounds to be addressed from the medical treatment perspective.

The internist testified that the Valley Fever had progressed to the patient's brain by the time he presented to for treatment. This diagnosis seems questionable, as we have no evidence of further X-rays being taken or what neurological signs and symptoms were presenting.

Valley Fever, like Lyme's Disease, can be very difficult to diagnose depending on the time of exposure, the development of the signs and symptoms, and the time the patient presents to the physician. In these and other such regional diseases, the diagnosis often is missed unless the physician is attuned to the signs, symptoms, and history of travel.

This case raises the issue of corporate negligence liability. Risk managers and middle and senior management should become familiar with corporate liability such as in this case for failure to follow established policy and procedures. Management and staff should be advised and re-enforced the need to follow policies and procedures. Risk management should be an advocate to facilitate that policies and procedures follow practice, and practice follows policies and procedures. Staff is held to the established policies and procedures but often do not know all applicable policies and procedures in the manuals. When one looks at the number of manuals of policies and procedures in a facility, it is understandable that many staff have never read them all.

Risk management should facilitate a system that allows and supports easy and ready access to policies and procedures to staff to review. Furthermore, steps should be taken to ensure that the members of the medical staff are familiar and abide by the organization's established policies and procedures.

Reference:

Jackson County Superior Court (NC), Case No. 09 CVS 261