By Damian D. Capozzola, Esq.
The 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: In October 2010, a Navy veteran went to a veterans hospital complaining of a headache and loss of peripheral vision. The man was seen by several physicians, and a CT scan was ordered. The CT scan revealed that the man suffered from an ischemic stroke, which is characterized as a stroke that occurs due to the blood supply to the brain being cut off. Eventually the source of the man’s minor stroke was determined to be cardioembolic, meaning it originated in his heart, but initially physicians were unsure where the stroke occurred. Without completing the practice referred to as “secondary stroke prevention,” which entails numerous steps designed to reduce a second stroke, the man was released and given baby aspirin to reduce the likelihood of a second stroke.
Just more than five weeks later, the man suffered a second stroke that resulted in locked-in syndrome. The man is now a quadriplegic who has fully functioning cognitive abilities but can move only his eyes and his head in a limited manner.
The man brought a claim against the doctors at the veterans hospital for failing to take the proper steps to prevent the second stroke. The defense argued that baby aspirin was the proper treatment and that treatment with warfarin would have been impossible because the man was being stubborn and uncooperative. The judge agreed with the man and found the doctors committed medical malpractice by failing to take more steps to prevent the second stroke. As such, the judge awarded the man $21.5 million.
Background: On Oct. 21, 2010, a 56-year-old Navy veteran was experiencing a headache and loss of vision. The man entered a veterans hospital seeking treatment. He was seen by numerous physicians, one of whom was an optometrist who ran a test for the man’s loss of vision. The optometrist determined that the man was experiencing incongruous right homonymous hemianopia, which is typically associated with a stroke.
A CT scan was ordered and revealed that the man had experienced an ischemic stroke, meaning the blood supply had been cut off from the brain. The physicians at the hospital were unsure where the stroke originated at that time and scheduled a transesophageal echocardiogram, which is a procedure that captures pictures of the heart. The man was told to take two baby aspirins and return for the transesophageal echocardiogram less than one month later.
On Nov. 18, 2010, the man returned for the transesophageal echocardiogram. The procedure revealed the man’s left ventricular function had been reduced by about 30–35%, which the physician believed indicated the man recently suffered a heart attack. He went back to the hospital two weeks later, which was the date of his previously and regularly scheduled visit with his primary care physician. The physician informed the man that the transesophageal echocardiogram revealed problems with his heart and ordered a follow-up consultation with a cardiologist.
The physician noted in the records that the man most likely had a heart attack and prescribed him aspirin, atenolol, rosuvastatin, and a B12 vitamin. The next day, Dec. 2, 2010, the man suffered a catastrophic stoke that immediately led to the man suffering from locked-in syndrome.
The locked-in syndrome left the man a quadriplegic who has no voluntary muscle movement except for the ability to move his eyes and head on a limited basis. The man is also fully conscious but cannot speak, has to breathe through a tracheostomy tube, lost control of his bowels, and requires around-the-clock medical care. Later tests revealed that both strokes originated from the same place in the heart region.
The man filed a medical malpractice claim for negligent treatment by the staff at the veterans hospital between Oct. 21, 2010, and Dec. 2, 2010, which is the timeframe of when the symptoms were first presented and the second stroke occurred. Because this facility was a veterans hospital with federal funding, the United States was liable for the conduct of the hospital and its staff. The man alleged that the hospital was negligent because it failed to administer proper secondary stroke prevention. The man further alleged that he was not given the proper medications to reduce the likelihood of a second stroke.
The defense maintained that the man was given the proper care and medication. The defense further pointed out that this particular patient was uncooperative and stubborn in the past and an alternative medication regimen would not have been an option because it would require regular monitoring.
The judge rejected the defense’s arguments and found the hospital failed to follow the necessary guidelines to prevent a second stroke. The judge awarded the man $21.5 million. The breakdown of the award was $13.3 million for medical care and expenses, $8.1 million in noneconomic damages, and $100,000 to the plaintiff’s wife for her loss of consortium.
What this means to you: This case illustrates the need to follow guidelines set in place to prevent medical catastrophes. In this particular case that deals with a stroke patient, the court ruled that “[i]t is a basic principle of medicine that a patient who has suffered a stroke is generally at an elevated risk of suffering a second stroke. Therefore, doctors who are treating stroke patients must be cognizant of this risk, and they must take steps to prevent a second stroke.”
The court went on to explain that “the established standard of care requires that a stroke patient undergo a thorough diagnostic evaluation to determine the cause of his stroke, and it requires that the patient be prescribed certain medication to treat the underlying condition that caused the stroke to occur.” As the court’s ruling explains, even while bearing in mind that the hospital staff considered this man stubborn and uncooperative, deviations from established standards can lead to massive liability.
This case also shows the danger of a physician making a judgment call regarding whether a patient will follow a recommended course of action.
The patient was not prescribed warfarin because the physician did not think he would take it due to the patient’s past behavior. The court then did a balancing test and considered his past behavior, as well as evidence that suggested the man was “very likely taking Aspirin as prescribed [to him]” and family members testifying that the first stroke changed his health choices for the better. The court then determined it was “more likely than not” that he would have taken warfarin had it been prescribed to him.
The court balancing considerations demonstrates that a subjective judgment call, such as whether a patient will take his medication, later can be reconsidered by a court or jury and lead to liability. A physician seeking to limit liability in this circumstance would have explained to the patient the established standards regarding the proper medication to take, the risks involved with its proper and improper use, and the risks of not taking it at all, and the physician would have documented all of those communications. Then, unless the physician is certain that judgment call to deviate from the established standard will survive scrutiny, the physician should follow the established standard and prescribe the proper medication.
In this case, the physician made an assumption about the future compliance of this patient. Assumptions are a dangerous practice for physicians to make, yet they are, unfortunately, far from uncommon. The physician had an opportunity to inform the patient and close family members who would have been available to monitor compliance with anticoagulant use. This lost opportunity contributed to this unfortunate event and subsequent liability.
United States District Court, D. New Hampshire. Case Number 13-cv-261-LM (April 03, 2015).