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
David Vassalli, 2016 JD Candidate
Pepperdine University School of Law
News: After experiencing symptoms of vertigo, the plaintiff went to the hospital and was advised to obtain an MRI. The MRI showed signs of small vessel ischemic disease, which the doctor believed to be normal for the plaintiff, as she was a woman in her 60s with high cholesterol. The hospital staff then informed the plaintiff that the MRI results were within normal limits. Just more than a year later, the plaintiff returned to that same doctor complaining of headaches, dizziness, and issues with her voice. The plaintiff informed the doctor that her voice did not sound normal to her but that nobody else noticed it, and she said the episode passed quickly. The doctor then examined her ear and had a nurse remove a large amount of wax from her left ear. The doctor also prescribed medicine for the dizziness.
Twenty-seven days later, the plaintiff suffered an ischemic stroke involving the right side of her brain that caused significant left-sided disability, which the plaintiff claimed was a result of the doctor and hospital’s failure to recognize and treat the symptoms of her impending stroke. In a trial lasting just three days, the jury found for the plaintiff and returned a verdict jointly and severally against the doctor and the hospital for $6.3 million.
Background: In 2001, the plaintiff began seeing her doctor and subsequently received annual checkups. At the time, the plaintiff was a woman in her 60s with high cholesterol. On June 17, 2003, the plaintiff experienced a severe episode of dizziness, called 911, and was taken to the hospital by ambulance. The medical staff ordered laboratory studies, an X-ray, and a CAT scan of her brain. The emergency department physician diagnosed her with labyrinthitis and told her to follow up with her family doctor. The plaintiff saw her family doctor less than a week later and was ordered to undergo an MRI. The MRI revealed small vessel ischemic disease, which the doctor considered a common finding in individuals older than 60 years old. As such, the doctor informed the medical staff to explain to the plaintiff that the MRI showed nothing abnormal. The staff did so, and the symptoms subsided a few weeks later. Then, on Nov. 1, 2004, the plaintiff revisited her doctor and expressed concern over headaches, dizziness, and an episode involving her speech. She complained that her voice sounded unusual to her, but that no one else has noticed it and it passed quickly. The doctor examined her ears and discovered a large amount of wax in her left ear, which he had the nurses remove. The doctor also prescribed meclizine for the dizziness, which ceased a few days later.
Twenty-seven days later, on Nov. 28, 2004, the plaintiff suffered an ischemic stroke. The stroke involved the right side of her brain and left her with significant left-sided disability. She is expected to have residual limitations for the rest of her life.
The plaintiff sued the doctor and hospital and contended that the doctor was negligent in failing to diagnose and treat her transient ischemic attack (TIA) that led to her debilitating stroke. Particularly, the plaintiff alleged the doctor fell below the standard of care on Nov. 1, 2004, when the doctor failed to diagnose TIA and initiate an urgent neurovascular workup after the plaintiff presented the symptoms of it with her difficulty speaking. Lastly, the plaintiff alleged the defendants failed to consider and properly address the plaintiff’s history of high cholesterol or the abnormal MRI in 2003.
The defendants maintained that they were not negligent and applied the appropriate standard of care. They said the MRI results were unremarkable and showed only normal small vascular ischemic findings that were normal for someone at the plaintiff’s age. Additionally, while the plaintiff believed she was experiencing difficulty speaking, she was the only person who heard it, and it could have been “subjective,” the defendants said.
The jury rejected the defendants’ arguments and decided the plaintiff was entitled to $6.3 million in damages. The award (joint and several against the defendants) was broken down as roughly $1.3 million for medical expenses, $4 million for past and future non-economic loss, and $1 million for husband’s loss of consortium.
What this means to you: This case is illustrative of a physician’s need to remain cognizant of the patient’s medical history and not to disregard what the patient claims to have experienced. Certainly many patients might deliver a plethora of symptoms they believe they were experiencing, and it then becomes the physicians’ task to use their judgment as to which symptoms deserve further attention. However, this practice can lead to trouble when one of the disregarded symptoms has a significant and troubling relationship with an item in the plaintiff’s medical-history file. Here, the symptom of the patient’s voice sounding different to her, which only she experienced, went largely disregarded.
Despite the physician having earwax removed from the plaintiff’s ear, the physician could have ordered an urgent neurovascular workup, discovered the TIA, and prevented the stroke. Even if the stroke was not prevented, the physician would have at least put forth the appropriate standard of care and could have avoided liability for himself and the hospital. Additionally, had the physician better considered the patient’s medical history, he might have called for such a procedure in light of the patient’s high cholesterol, repeated spells of dizziness, and small vessel ischemic disease.
Another lesson illustrated here is that physicians should be careful in the manner they characterize a patient’s symptoms. In this case, the plaintiff’s symptom of her voice sounding unusual to her was being characterized as “noticed only by her” and a “subjective” symptom. While these phrases are accurately conveying the truth regarding the symptoms, they seem dismissive of the patient and can build resentment in a jury. That dismissive sentiment was likely a repeated theme of the plaintiff’s lawyer and something that played on the fears of the jury, with the fear being that doctors don’t take them seriously or believe they are capable of accurately conveying what happened to them. In fact, it was argued that the physician ignored the patient’s symptom.
In the context of characterizing a patient’s symptoms, remember that every spoken and written word might someday be used in court against you. While this statement doesn’t mean a physician’s notes and chosen words cannot be a direct and accurate portrayal of how the physician evaluates the symptoms, it does suggest the physician should consider how a jury might one day view the physician’s characterization of the patient’s symptoms.
The last issue in this case was the physician’s failure to treat the patient’s high cholesterol earlier. The doctor became aware of the issue in 2003 and was alleged to have done nothing to treat it at first. It wasn’t until one year later that the doctor prescribed the Lipitor that eventually lowered her cholesterol, and the stroke occurred only months after that time. If the doctor began treatment early, he could have prevented the further buildup of plaque and the resulting carotid stenosis that was attributed to the stroke. The same result could have been achieved by the doctor scheduling follow-up exams to monitor the patient’s cholesterol or by explaining the possible adverse effects of high cholesterol to the patient and advising her that she can see a specialist if she wishes. Any of these steps would have diminished the likelihood of stroke and not furthered the narrative of the doctor ignoring his patient’s symptoms. The lesson seen here is that addressing what might seem innocuous to you or common knowledge to the patient not only provides peace of mind to the patient, but it also can shield the physician and hospital from future liability.
- Montgomery County Court of Common Pleas, PA. Case Number 2006-26593. March 26, 2015.