Misdiagnosis Leads to Sepsis, Amputations, and $16.5 Million Verdict

News: In 2011, a woman presented to a Missouri medical clinic for treatment relating to her inflamed gallbladder. During a diagnostic scan, the patient was injected with substances that ultimately caused her tremendous discomfort and psychological trauma. She filed suit against the medical clinic, claiming that alleged representations made by unidentified medical professionals amounted to fraud. The trial court granted the defendant’s motion to dismiss, finding the patient to have filed the petition untimely.

The patient appealed to the Missouri Court of Appeals. The court noted that the allegations in the complaint were essentially a medical malpractice claim disguised as a fraud claim. Accordingly, the court affirmed the dismissal of the petition with prejudice.

Background: On March 8, 2011, a woman was admitted to the nuclear medicine clinic in Missouri for a hepatobiliary scan to investigate inflammation in her gallbladder. Unidentified nurses and technicians injected the patient with an unknown substance or substances to trace and identify the abnormalities that were causing abdominal pain. When the substance was injected, the patient suffered an extreme burning sensation beginning in her left arm, spreading throughout her entire body.

Through its unidentified nurses and technicians, the clinic made representations that medical records of the procedure were being prepared and maintained at the time of the procedure as part of the hepatobiliary scan. According to the petition, the employees made these representations by “asking questions and recording [on the clinic’s computer system the patient’s] responses to those questions and the activities taking place in the treatment room.”

Through its chief medical officer, the clinic represented that no medical records of the procedure were prepared or maintained at the time of the procedure on March 8, 2011. The patient claimed that the representations by the employees that medical records were being prepared and maintained were false.

The patient sued for fraud, alleging that the representations regarding the medical record were material to her decision to continue with the hepatobiliary scan; that the clinic knew or should have known that the representations were false; that the clinic intended that she would act upon the representations, and she acted in the manner reasonably contemplated by the clinic when she consented to continue with the hepatobiliary scan; that she was ignorant of the falsity of the representations; that she relied on the representations being true when she decided to continue with the scan; that she had the right to rely on the representations; and that, due to the lack or absence of medical records, she could not reasonably discover whether she had a cause of action for medical malpractice.

The patient further alleged that the clinic’s conduct proximately caused her physical and psychological conditions, including seizures and PTSD, caused by the unknown substance(s). In response, the clinic filed a motion to dismiss the petition, alleging that the patient was attempting to circumvent the applicable statute of limitations for medical malpractice claims by characterizing her claim as a fraudulent misrepresentation claim, rather than a medical malpractice claim.

The circuit court granted the motion, agreeing that the patient was attempting to reframe a medical malpractice claim into a fraud claim and holding the plaintiff’s claim time-barred. The circuit court also found that, even if the claim was truly for fraud, the petition failed to set forth facts supporting each element for a fraud claim. Thus, the circuit court dismissed the petition with prejudice, and the plaintiff appealed.

The Missouri Court of Appeals inquired into whether the “gist or gravamen” of the patient’s complaint was a claim for medical malpractice or fraud. In its analysis, the court put emphasis on the causation element pleaded by the patient, stating “[t]he source of the damages that [the patient] contends were proximately caused by [the clinic’s] actions were not caused by any alleged misrepresentations, but by the unknown substance being injected into her arm.” Thus, the court determined that the gist or gravamen of the petition was a medical malpractice claim. With that finding in mind, the court computed the applicable statute of limitations to have expired on March 8, 2013. Because the plaintiff failed to bring her claim until March 5, 2016, the court affirmed the trial court’s dismissal with prejudice.

What this means to you: This case illustrates the importance of careful pleading. Had the plaintiff’s attorney pleaded the case as a medical malpractice claim, the case would have been dismissed without an argument. The attorney’s creative pleading gave the plaintiff a chance at recovery, which she had forfeited years ago. The obvious lesson for the defense is to carefully evaluate complaints and petitions to ensure medical malpractice claims cannot unlawfully sneak into court outside the applicable statute of limitations via a disguised fraud claim or otherwise. Of particular relevance was the court’s focus on the causational element of the petition. It appears the gist or gravamen of a petition or complaint is contained in its causation allegations. Keeping this in mind, practitioners should focus their evaluations and arguments on causation to effectively refute plaintiffs with questionable claims.

The discovery rule (not triggering the statute of limitations until the plaintiff knows or should know about the claim) in the pleading context was subtly involved in this case. The plaintiff claimed that she was ignorant of the falsity of the representations made by the medical professionals. Such an argument may have provided the plaintiff tolling of the medical malpractice statute of limitations had she argued that she was unaware of the damage caused by the injections. Of course, it would be a difficult argument to make, given the instant burning sensation she experienced, but other cases may turn on the discovery rule. Taking this into consideration, defendants must evaluate whether potential plaintiffs have had the opportunity to learn the ultimate facts that establish the elements of their claims. If not, the standard expiration of a statute of limitations may not end a plaintiff’s right to sue, and could create future litigation.

This case also demonstrates the value in maintaining proper medical records. Those records would have shown what substances were injected and by whom. Titles and credentials also would be indicated. However, the patient’s complaint of burning at the initiation of treatment should have resulted in the immediate cessation of treatment, notification to the radiologist, and providing antidote treatment to the patient to prevent long-term consequences. Before injections of radioactive isotopes, dyes, and other diagnostic and contrast materials, a thorough review of the patient’s allergy history and a discussion about any issues with similar previous procedures must occur and be well-documented, along with the patient’s consent to have the substances injected. It is the responsibility of the radiologist to inform the patient about the procedure and the possible risks involved. There should be no unknowns, and if there are, the procedure should be delayed until all the patient’s questions are answered. This informed consent process must be spelled out and documented clearly in the medical records to protect all those involved.

It is unlikely any exchange of documents occurred in this case, considering its early adjudication and defense victory on legal grounds. It is unclear whether the clinic kept the record the plaintiff alleged should have existed. The patient was entitled to her official medical record, but additional documentation could have been uncovered in discovery during litigation. The medical professionals would hope to seek protection in the records, showing any injections were within the standard of care. If the injections were improper, the clinic ran a tremendous risk of inviting a lack of informed consent claim for failing to disclose the contents of the injections and their effects, and were bailed out in this instance by the plaintiff’s failure to act on a timely basis. Regardless, knowledge of the contents of any injection is important for defending a medical malpractice claim, and the importance of maintaining a detailed medical record cannot be overstated.


  • Decided on May 23, 2017, in the Missouri Court of Appeals, Western District, Case No. WD 80063.