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By Damian D. Capozzola, Esq.
Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Tim Laquer, 2015 JD Candidate
Pepperdine University School of Law
News: The patient, a 49-year-old man, was accidentally injured by a collapsible barrier that raised while the man was walking over it, which trapped his left leg and twisted it. His knee was momentarily dislocated in the process, and the patient was taken to a nearby hospital emergency department. A physician’s assistant (PA) evaluated the patient and noted serious symptoms including numbness of the leg, paresthesia, and sharp pain. The PA ordered an X-ray and subsequently diagnosed a simple knee sprain. A physician in the emergency department agreed with the PA’s findings and diagnosis, and the patient was discharged. Two days later, the patient returned to the hospital and had no feeling in his left foot. It was then discovered that the patient had torn ligaments and tendons, and he suffered a tear in his popliteal artery. The patient underwent an above-the-knee amputation. The patient brought suit against the hospital, PA, and physician, and he alleged that the incorrect diagnosis caused his injury. The defendants all denied liability. The jury agreed with the patient and awarded $5.2 million in damages against all three defendants, which was reduced pursuant to a “high-low” agreement.
Background: The patient was a 49-year-old man who was accidentally injured in December 2009 while leaving his job. A collapsible barrier was inadvertently raised while the patient was walking over it, and this action trapped and twisted the man’s leg. His left knee was momentarily dislocated during this accident, and he was rushed to a nearby hospital emergency department via an ambulance. At the hospital, the patient was evaluated by a PA. The PA recorded serious symptoms in the patient’s medical chart, including leg numbness, paresthesia (tingling, prickling, or other skin sensations), and sharp pain. The patient also reported an inability to move his left foot. The PA ordered an X-ray of the leg and diagnosed the patient with a simple knee sprain. The PA did not evaluate the patient’s range of movement in his leg or order further tests beyond the X-ray. A physician in the emergency department testified that she agreed with the PA’s findings and diagnosis, but it was unclear at the trial whether the physician evaluated the patient. The patient’s medical chart provided no evidence of an evaluation, and the physician did not sign the medical chart until 10 days after the patient’s hospital visit. The patient was discharged with instructions to see an orthopedic surgeon.
However, two days after his discharge, the patient returned to the same hospital complaining of the same numbness, pain, and lack of feeling in his left foot. At this point, it was discovered that the patient had torn nearly all of the ligaments and tendons in his knee, and the knee dislocation had caused a tear in his popliteal artery. These injuries kept the leg from receiving enough blood, which resulted in the tissues in his leg and foot dying. The hospital attempted to save the leg, but this attempt ultimately was unsuccessful. The patient had no option but to undergo an above-the-knee leg amputation.
The patient brought suit against the hospital, the PA, and the physician. The patient claimed that the initial incorrect diagnosis constituted a deviation from the appropriate standard of care and, thus, was medical malpractice. According to the patient and his experts at trial, the PA, and the physician herself, should have performed additional diagnostic tests to rule out an injury to the popliteal artery. One expert, a vascular surgeon, testified that these tests would have revealed the injury to the artery and it could have been repaired at that time, thus the delay in diagnosis caused blood depravation to the leg and foot that necessitated an amputation. The defendants attempted to argue that their actions met the standard of care, although the PA admitted that she suspected a knee dislocation. After three hours of deliberation, the jury found the defendants jointly and severally liable and awarded $5.2 million in damages. However, the parties had previously negotiated a “high-low” agreement that guaranteed the patient recovery of at least $750,000 but no more than $1.5 million. As a result of this agreement, the $5.2 million verdict was reduced to $1.5 million.
What this means to you: Diagnostic errors account for a large number of medical malpractice cases every year, and these claims can result in particularly large verdicts. As with other types of errors, a misdiagnosis or failure to diagnose is viewed in accordance with the applicable standard of care: how a similar physician or healthcare provider would have acted under the same or similar circumstances. A physician is not necessarily negligent because of an error in judgment or because efforts ultimately prove unsuccessful. However, if a medical issue is common or well-known in the medical community, and diagnosis of that issue is similarly commonplace, then a physician who fails to diagnose the issue or improperly diagnoses a different issue might be liable for medical malpractice, if a reasonable physician in the same or similar circumstances would be able to properly identify the issue.
Ordering and performing the appropriate diagnostic tests is a critical part of this process and is the major issue for the physician and PA here. Popliteal artery tears are not uncommon and should be suspected, especially after an injury that also involves a dislocation. Bone fragments as well as twisting injuries can sever this artery. Initial symptoms are commonly numbness and tingling as a result of diminished blood supply to the area the artery serves. The injury can be further exacerbated if the knee is not immobilized and the patient continues to bear weight on it. A simple check of pedal pulses, a routine examination done for this type of injury, would have revealed a compromised vascular system below the injury. A CT scan would be the standard diagnostic test for a patient with this injury and accompanying symptoms. The PA in this case ordered only an X-ray, which was insufficient given a suspected knee dislocation, and that insufficiency was enough to rise to the level of medical malpractice.
The role of the PA can vary from one healthcare organization to another. The medical staff of each facility can determine the degree of independence of the PA as well as the areas of the facility in which they can function as long as state mandates are met. However, in all cases, the PA must practice under the supervision of a fully licensed physician. In this case, the PA admitted to having concerns about the patient’s injury. The PA had a duty to consult with her supervising physician who, at that point, would have a duty to examine the patient, order additional tests, and consult with a vascular or orthopedic surgeon as well as a radiologist before even considering discharging the patient.
Life in the emergency department can be and often is hectic, fast-paced, and even chaotic at times. This situation requires extreme vigilance on everyone’s part. Skipped steps and missteps can lead to devastating results for patients, healthcare organizations, and those who practice there. The ED physician’s duties are lightened somewhat by support staff such as PAs or nurse practitioners. However, with the use of these assistants comes the added responsibility to supervise and document agreement with the care they provide.
Medical records and evaluations are of extreme importance for healthcare providers to protect themselves against medical malpractice claims. Keeping detailed and accurate records of a patient’s medical procedures and evaluations by physicians, with comments relating to those evaluations, are critical in order to prove that these events occurred. In this case, the parties debated whether the physician evaluated the patient. If the physician did evaluate the patient, she failed to note it on his medical chart. This lack of documentation makes it hard to prove at trial that the evaluation occurred. Meeting the standard of care is the most important part of treating a patient to prevent medical malpractice, but if there is no evidence to prove this, that situation will make the future difficult in proving that a medical care provider actually did comply with the standard of care.
This case also reveals how “high-low” agreements can be a powerful device for physicians and hospitals to reduce their potential liability. The agreement sets a minimum amount that the plaintiff will recover, even in the case of a defense verdict, but it also sets a maximum amount for recovery. Because juries are not informed of these agreements, there is not a fear that the jury will hear about it and automatically award the maximum. These agreements are beneficial to both sides. Plaintiffs have a safety net that guarantees some monetary recovery, and defendant physicians and hospitals can protect against runaway juries who issue huge verdicts. If a medical malpractice case arises and continues all the way to trial, physicians and hospitals should discuss with counsel about potentially negotiating a “high-low” agreement. It offers protection from enormous verdicts, with the cost of the agreement being some loss recognized.