News: A patient was referred to a hospital’s heart and vascular institute by his family physician due to a family history of coronary artery disease. The patient underwent testing, including a heart monitoring test known as a stress ECG, to evaluate his condition. The ECG result was abnormal, but the cardiologist and hospital failed to properly read the tests and inform the patient or his primary care physician of the abnormalities. Two years later, the patient was diagnosed with nonischemic cardiomyopathy.

The patient sued the hospital and cardiologist, alleging that the failure to report the abnormal test results prevented timely treatment of the patient’s heart disease, increasing his risk of harm and worsening his medical condition. The defendants denied liability. A jury found in favor of the plaintiff and awarded $3.5 million. The hospital appealed, but an appellate court affirmed the verdict.

Background: In 2014, a 47-year-old patient, who had a family history of coronary artery disease, was referred to a hospital’s heart and vascular institute. The patient underwent a stress ECG and the results were abnormal. However, the cardiologist did not accurately read the test results, and instead reported to the patient’s primary care physician that the overall impression of the ECG was normal except for poor patient physical conditioning.

Approximately two years later, the patient presented to the same hospital’s ED with shortness of breath, leg swelling, and a persistent cough. Another ECG revealed profound abnormalities, including worsened left ventricular dysfunction with ejection fraction of 10-15%. The patient was diagnosed with nonischemic cardiomyopathy and underwent cardiac catheterization. He was placed on a wearable defibrillator “life vest.”

The patient filed a medical malpractice suit against both the hospital and cardiologist, alleging that the misreading of the initial ECG and the failure to report the abnormal test results prevented the patient’s timely treatment of the medical condition, and that it increased his risk of harm. The patient settled his claims with the cardiologist prior to trial, but the litigation against the hospital proceeded to a jury trial. During trial, the hospital’s director of cardiology services testified that the hospital’s internal policy calls for an ECG report to be signed by a physician or recorded within 72 hours of a test; if not, it would be flagged for a sonographer to request a cardiologist to interpret the study to send it out. The director testified that it was the hospital’s responsibility to send the patient’s complete ECG report to the patient’s primary care physician.

An expert witness in internal medicine and cardiology testified for the patient. The expert opined that a “normal” ejection fraction is 60-65% and that the lack of follow-up care for the patient could have allowed his condition to worsen. The patient’s 10-15% ejection fraction at the time of the second ECG revealed that the heart is barely moving, according to the expert, and the cardiologist’s failure to evaluate the ejection fraction, failure to communicate the ECG report, and failure to sign the ECG report all fell below the standard of care. The hospital argued that the patient failed to present sufficient expert testimony that it deviated from the standard of care, or that any deviation caused the patient’s injury.

A jury found that the hospital and cardiologist’s conduct fell below the applicable standard of care, and that their negligence caused the patient’s harm. The jury attributed 80% of the fault to the cardiologist and 20% to the hospital, and awarded the patient a total of $3.5 million. The hospital appealed, arguing the patient did not submit sufficient evidence to support the verdict. An appellate panel rejected the appeal and affirmed the verdict.

What this means to you: This case illustrates the importance of expert witnesses. Another lesson from this case is the varying standards that courts and juries apply when evaluating the sufficiency of such evidence. This case focused on an alleged “increased risk of harm,” which is less common than a typical medical malpractice action involving a patient directly suffering harm. The patient here presented expert witness testimony concerning ejection fractions and the course of treatment that the expert contended satisfied the standard of care in such circumstances. The defendant hospital argued that this evidence was insufficient as a matter of law to support the jury’s significant verdict.

According to the appellate court, this state’s law provided for a “relaxed standard” for medical malpractice cases that allege an increased risk of harm. It found that the patient’s testimony, including the expert testimony, was sufficient to satisfy that relaxed standard. The appellate panel determined that the jury was properly instructed to resolve the question about whether the hospital’s acts or failures to act were a substantial factor in causing the patient’s harm by a preponderance of the evidence standard. These legal standards are important and may factor into a care provider’s evaluation of a medical malpractice action; a patient who is required only to prove a “relaxed” standard will have an easier time convincing a jury about complicated issues or contentions, especially those raised by conflicting expert testimony. It is important to consult with legal counsel when evaluating a medical malpractice action to understand the applicable standards and to weigh the risks of confronting such standards at a jury trial.

On a related point, physicians and care providers can avoid the prospect of a multimillion-dollar adverse verdict by engaging in methods of alternative dispute resolution with the goal of settling the case prior to trial. Here, the defendant cardiologist settled before trial. Although the settlement amount was not disclosed, it is extremely likely that the amount was less than the amount awarded by the jury. At trial, the jury attributed 80% of the fault to the cardiologist and 20% to the hospital. Many states use a method of joint and several liability where if two parties are found liable, the injured party may recover the entire amount from either party, and the two liable parties may seek contribution based on the percentage of fault between each other. Thus, in this case, the patient could have recovered all $3.5 million from the cardiologist, and the cardiologist then would have been able to seek contribution of $700,000 from the hospital — leaving the cardiologist responsible for $2.8 million. Alternative dispute resolution, such as mediation or arbitration, offer options to facilitate settlement and reduce any final adverse award.

Along with these important legal principles, a lesson from this case is the importance of reporting and documentation. In this case, liability arose in part because the cardiologist failed to communicate the full ECG report and failed to sign it. Thus, beyond the misreading of the report, the lack of communication constituted actions below the standard of care. Physicians and care providers must ensure that diagnostic results are forwarded to the appropriate recipients, including recipients outside the hospital or medical group where the test was performed, if necessary. The defendant hospital employed an internal policy about reporting test results to patient’s family physicians; unfortunately, the policy in this case was not followed. While a failure to follow such an internal policy does not automatically constitute negligence, it does support a patient’s contention that such actions were negligent. Ultimately, the determination is whether the care provider failed to satisfy the standard of care applicable to a physician in the same or similar circumstances.

Finally, it is not rare for a test result to be misinterpreted. The sonographer prepares the findings for a cardiologist’s interpretation. Part of this preparation includes assurance that the report belongs to the correct patient and that all pertinent data have been obtained. If policy requires the sonographer to flag an unsigned study for interpretation and signature within 72 hours, then the organization must have procedures in place to assure that this happens 100% of the time. The physician ordering the study is responsible for ensuring the study is performed and that results are received. If results are not signed, they are not valid and should not be used as a diagnostic tool. Additionally, if the test results do not match the patient’s clinical picture, the ordering physician should request a second opinion or a repeat study. In this case, with a strong family history of cardiovascular disease, there may have been a reason to doubt a completely normal study. Finally, the cardiologist should be monitored for similar events. If trends are noted, then a collegial intervention from peers and/or departments chairs may be warranted.

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Decided July 19, 2019, in the Superior Court of Pennsylvania, Case Number 1682 MDA 2018.