The patient’s previous medical history became a central issue in a malpractice case involving a 41-year-old woman who presented to an ED with new and sudden onset of impaired focusing of her left eye.¹

The triage nurse noted that the left side of the patient’s mouth and her left eyelid appeared to droop, and also documented the patient’s history of artificial heart-valve surgery. The patient had been prescribed warfarin but had not taken it for about a year because she could not afford the prescription. After a phone conversation with the on-call ophthalmology consultant, the patient was diagnosed with sinusitis and discharged home on antibiotics. A CT scan did not disclose any evidence of a stroke, but it revealed the presence of sinusitis. The patient was discharged from the ED with a diagnosis of pupil-sparing third-cranial nerve palsy, with instructions to see the ophthalmologist the following day.

After her symptoms progressed, the patient went to a different ED the following day, and was found to have sustained a mid-brainstem stroke. After a jury trial, the plaintiff received $450,000 in economic damages and $0 in non-economic damages.

“During the next few years, both parties appealed the case on a number of legal grounds,” says Thomas R. McLean, MD, JD, CEO of American Medical Litigation Support Services in Shawnee, KS. These included the plaintiff’s desire to obtain non-economic damages, and the defense’s assertion that the patient’s failure to receive follow-up care as instructed constituted contributory negligence. Ultimately, the appellate court let the jury’s award and the trial court’s post-judgment rulings stand.

In this case, McLean says, “the ER physician made a mistake when he ignored the patient’s heart valve history and the lack of [warfarin] use. It seems likely that when he discussed the case with the ophthalmology consultant, that he did not mention these facts.”

From a medical legal standpoint, says McLean, EPs should take notice of the strong defense that the medical malpractice carrier put on for this physician. However, the defense team’s best efforts didn’t change the fact that the case appeared to be a clear case of failure to make a proper diagnosis.

“Although the EP had an excellent legal defense team, it still could not make the physician’s error go away,” McLean notes. The take-home message, according to McLean: “Always provide the standard of care to your patients, and never overlook relevant past medical history.”

Failure to Obtain Records

Michael M. Wilson, MD, JD, a Washington, DC-based malpractice attorney, had a case in which much of the litigation concerned the failure to obtain the patient’s prior medical records from the local pediatrician. The patient was treated with doxycycline, and had a Stevens-Johnson syndrome reaction.

“The argument was that if the ED physician had taken a more complete history, she would have discerned that the patient was concerned about some mouth nodules, went in to see the pediatrician two weeks previously, was pancultured, with all cultures being negative, and had no intervening change in sexual partner,” Wilson says. Therefore, the plaintiff alleged, the doxycycline would not have been prescribed if the ED physician had contacted the pediatrician’s office and had the recent records faxed over.

“Even though a complete history is not required, a history that is pertinent to the chief complaint and related symptoms, and is adequate in depth, is required by the standard of care,” says Wilson. While this is case-specific, where it is feasible to do so, it may be required to contact the previous treating physician and have at least the recent medical records and labs faxed over.

“Many times patients do not understand the labs or the medical issues, and the only way to obtain an adequate history is to do so by contacting the previous treating physician directly,” Wilson says.

Los Angeles healthcare litigator Damian D. Capozzola, JD, says it is critical for EPs to take “as complete a history as possible” under the circumstances that apply to a particular ED patient.

“By definition, ED patients are more likely to be compromised in their ability to think or recall clearly,” Capozzola says. If there is an adverse outcome and the patient becomes a plaintiff in a lawsuit, the plaintiff’s lawyer will likely look to put the blame on the provider for not being adequately sensitive to the patient’s contemporaneous inability to contribute accurately to his or her own history.

EPs must diligently document the history in the record, both for positive and negative responses, Capozzola adds.

“If a good history was taken but not documented, at trial the plaintiff will be able to paint the picture that no history or a poor history was taken, contributing to an adverse outcome,” he notes.

REFERENCE

1. Reeves v. Healy, 192 Ohio App.3d 769 (2011).

SOURCES

• Damian D. Capozzola, JD, The Law Offices of Damian D. Capozzola, Los Angeles, CA. Phone: (213) 533-4112. Fax: (213) 996 8304. E-mail: ddc@ddclaw.com.
• Thomas R. McLean, MD, JD, American Medical Litigation Support Services, Shawnee, KS. Phone: (913) 526-5526. E-mail: tmclean@isp.com.
• Michael M. Wilson, MD, JD, Michael M. Wilson & Associates, Washington, DC. Phone: (202) 223-4488. Fax: (202) 280-1414. E-mail: wilson@wilsonlaw.com.