News: On May 16, 2012, a 50-year-old woman was admitted to a hospital in Philadelphia after experiencing nausea, dizziness, and fainting. At the hospital, the patient experienced tachycardia and the nurse noted that she exhibited dyspnea on exertion. The patient informed the attending physician and resident she had undergone surgical repair of a right-leg fracture in March. The patient underwent an ECG and blood tests, and received two liters of IV fluid. She was diagnosed with dehydration secondary to gastroenteritis and was discharged about five hours after admission.

On May 31, the patient became dizzy, started vomiting, and experienced chest pain; she later died of cardiac and respiratory arrest. Her estate sued the hospital and the attending physician, alleging medical malpractice for failing to diagnose and treat a pulmonary embolism.

The estate’s expert in emergency medicine faulted the physician for negligently failing to properly diagnose her, given her recent surgery, ensuing immobilization, shortness of breath, tachycardia, and abnormal ECG results. After the five-day trial, the jury delivered a $7.7 million verdict in favor of the plaintiff for wrongful death.

Background: On May 31, 2012, a 50-year-old woman died of a massive pulmonary embolism at her vacation home in Wildwood, NJ. Fifteen days prior, the patient presented to a Philadelphia hospital after experiencing nausea, dizziness, and fainting. The patient experienced tachycardia, and the nurse noted she exhibited dyspnea on exertion. The patient informed the attending physician and resident that she had undergone surgical repair of a right-leg fracture in March. At the hospital, she underwent an ECG and blood tests, and received two liters of IV fluids. The patient was diagnosed with dehydration secondary to gastroenteritis and discharged after about five hours.

The patient continued to experience some dizziness after discharge. On May 31, she became dizzy, started vomiting, and experienced chest pain. The patient went into cardiac and respiratory arrest; she was unable to be resuscitated by emergency services.

The patient’s estate sued the hospital, the attending physician, and the resident (who was later dismissed), alleging the physicians negligently failed to diagnose and treat her pulmonary embolism, amounting to medical malpractice.

The plaintiff’s emergency medicine expert faulted the physician for failing to take the patient’s recent surgery into account. The patient was largely immobilized afterward, presented to and left the hospital in a wheelchair, and had a history of syncope, shortness of breath upon exertion, and tachycardia. In addition, the abnormal findings on the ECG should have alerted the physician that the patient was at risk for a pulmonary embolism. A pulmonology expert testified that if the physician treated the patient properly by administering blood-thinning medication, she would have survived. The plaintiff also elicited testimony from the patient’s surviving husband, co-workers, and father, seeking to invoke the jury’s emotional response.

The defense’s emergency medicine expert alleged the physician had no reason to suspect that the patient suffered from a pulmonary embolism and that, given her symptoms, his diagnoses of dehydration and stomach flu were correct. The expert stated that, despite the plaintiff’s expert’s opinion, the hospital staff properly addressed lethal conditions. The defense’s pulmonology expert maintained the physician’s diagnosis was reasonable and the patient was properly treated. Counsel for the defense alleged that the patient was comparatively negligent because she did not adhere to her discharge instructions to follow up with her family doctor.

After a five-day trial, the jury found in favor of the plaintiff in the amount of $7.7 million, with the liability apportioned to the hospital and physician equally. While the jury deliberated, the parties negotiated a high/low stipulation that the defendants’ monetary liability could not exceed $6 million, but had to equal or exceed $1 million.

What this means to you: This case shows how critical it is for physicians and other medical personnel to pay close attention at the outset to each patient’s symptoms and circumstances surrounding their admissions. If the physician had properly diagnosed this patient, she likely would not have died from the pulmonary embolism. This patient’s complaints were cardiac and respiratory in nature. Her dehydration resulted from vomiting, which also can be a cardiac symptom. The patient did not complain of abdominal pain or flu-like symptoms such as fever or body aches. The diagnosis of gastroenteritis, possibly made by the less experienced resident, may have been agreed upon by the ED physician without that physician examining the patient. Unfortunately, this is not an uncommon occurrence in busy EDs. This patient’s symptoms and recent orthopedic injury, coupled with an abnormal ECG, should have resulted in admission to the ICU with cardiology and pulmonary consults. Pulmonary embolisms following large bone fractures are not rare and should have been suspected with this patient’s history.

Effective use of the high/low agreement was valuable in this case. The agreement saved the defense $1.7 million, and it is worth noting the agreement was reached when the trial ended. If a defense lawyer realizes the potential for the jury to deliver a harsh verdict against the client, it is wise to enter into such an agreement if the plaintiff is willing to do so to mitigate the risk of getting nothing as a result of a defense verdict. This shows the importance of emphasizing that a trial attorney’s job in representing the defendants does not end when the jury begins deliberation.

The reality is that a plaintiff in these kinds of cases usually is less able to absorb a devastating defense verdict than the hospital and/or physician is able to absorb a convincing victory for the plaintiff. The defendants likely have insurance of some kind, whereas the plaintiff is often counting on money from the lawsuit to replace a lifetime of lost wages from the injured or deceased patient. Even after the case has gone to the jury, this dynamic provides leverage for negotiations.

This case also illustrates the plaintiff’s advantage in eliciting an emotional response from the jury. The plaintiff in this case was a woman five years from retirement who only saw her husband a few times a year, but called him every day at 4:00 p.m. The plaintiff’s attorney emphasized the fact that the patient was so close to being able to spend time with her husband for the remainder of her life. It is a difficult art for defense attorneys to redirect the jury’s attention to the legally relevant points of focus in a case, namely whether a physician or hospital acted negligently.

REFERENCE

  1. Philadelphia County Court of Common Pleas Case No. 140203126, May 23, 2016.