Legal Review & Commentary: Failure to diagnose brain abscess brings $3 million verdict in Pennsylvania
Legal Review & Commentary
Failure to diagnose brain abscess brings $3 million verdict in Pennsylvania
By Jon T. Gatto, Esq., and Blake J. Delaney, Esq., Buchanan Ingersoll & Rooney PC, Tampa, FL
News: A woman suffering from headaches went to the hospital, where she was diagnosed with a tension headache and discharged with muscle relaxation and pain medication. Her headaches persisted, so she went to her primary care physician a couple of days later. Because the primary care physicians were not available, the woman was evaluated by a physician's assistant (PA), who diagnosed her as suffering from a sinus infection and prescribed steroids. Five days later, the woman returned to the hospital, at which time a brain abscess was discovered. Emergency brain surgery was performed, and the woman was left permanently debilitated. The woman and her husband sued the hospital, the primary care physician group, and the PA for negligence. After a jury trial, the hospital was absolved of liability, but a $3 million verdict was returned in favor of the plaintiffs and against the primary care physician group and its PA.
Background: A middle-aged real estate agent who had experienced headaches for the past few days went to the hospital, where an ED physician examined the woman, diagnosed her with a tension headache, and prescribed her muscle relaxation and pain medication.
Two days later, the woman still was suffering headaches albeit not as severe so she visited her primary care physician. Neither of the practice's primary care physicians was available to see the woman, however, and so she was examined by a PA, who determined that the woman was suffering headaches, nasal discharge, swollen eyes, red sinuses, and nausea. The PA diagnosed the woman's eye swelling as an allergic reaction and prescribed the woman steroids. The PA told the woman to undergo a sinus X-ray and blood work within a week.
Five days later, the woman developed stroke-like symptoms, including facial drooping and disorientation, and was taken back to the hospital. A CT scan performed at the hospital showed a brain abscess, and she was immediately airlifted to another nearby hospital. At the second hospital, doctors performed emergency brain surgery, in which part of her skull was removed and replaced with plastic.
Following the surgery and two months of hospitalization, the woman suffered respiratory failure and she was put on a ventilator. Within the month, she underwent subsequent brain surgeries to further remove the abscess and to repair inflamed brain tissue that had resulted from the prior operations. The woman ultimately lost vision in her left eye. She then entered intensive rehabilitation, during which she re-learned to walk and underwent cognitive treatment.
The woman and her husband sued the first hospital, the primary care physician group, and the physician's assistant for medical professional liability. As for the hospital, the plaintiffs argued that it failed to diagnose the woman's sinus infection upon her initial ED visit. The woman argued that had she been treated with antibiotics at that time, the progression of a brain abscess would have been prevented. To support her claims, the woman offered the testimony of an emergency medicine expert and an otolaryngology expert.
The woman argued that her primary care physician and the PA had breached the standard of care by failing to properly diagnose her with a sinus infection and by improperly prescribing steroids without prescribing an antibiotic along with it. The woman offered expert testimony that the steroids actually masked the sinus infection and exacerbated it. The woman also argued that the PA negligently failed to order tests on an urgent basis, given that she didn't completely know the cause of the woman's symptoms. And finally, the plaintiff pointed out that the primary care physician was approved by the state medical board to have a PA who could examine patients, but only so long as the physician subsequently examined the patient or evaluated the assistant's chart of that patient. The plaintiff contended that her primary care physician did not examine the patient or consult with the PA about her examination, which consequently breached the standard of care.
All of the defendants denied the allegations. The hospital contended that the ED physician properly treated the woman and that it was not negligent to not diagnose her with a sinus infection. The PA maintained that she appropriately treated the plaintiff and that the patient was comparatively negligent for not immediately receiving diagnostic testing following the PA's examination. The PA's internal medicine expert opined that it was unnecessary for the primary care physician to examine the patient or to confer with the plaintiff's chart, and that the physician did not breach the standard of care. And finally, the defendants offered the testimony of a neuropsychiatry expert to establish that the patient had suffered a frontal lobe injury that was fixed in terms of its severity and duration. The expert further testified that the woman's condition could worsen with age, as she was more susceptible to developing dementia, which could exacerbate the injury.
After an eight-day trial, a jury deliberated for five hours before returning a $3 million verdict in favor of the plaintiffs, with $2 million allocated to the woman to cover medical expenses and pain and suffering and $1 million allocated to the husband for his loss of consortium. The jury determined that the physician's assistant and the primary care physician had acted negligently but that the hospital and the ED physician were not liable. The primary care physician's practice indicated after the trial that an appeal would be forthcoming.
What this means to you: "All too often, a patient's initial visit to the emergency department does not resolve the patient's medical problems," says Ellen L. Barton, JD, CPCU, a risk management consultant in Phoenix, MD. "Thus, it becomes incumbent on the next provider (whether a return visit to the ED or the patient's primary care physician) to exercise a greater degree of scrutiny in examining, diagnosing, and treating a patient who presents within 24, 48, or 72 hours with the same or similar symptoms."
When the patient presented to her primary care physician's office and found no physician available, she was examined by a PA. "What is interesting is that there are more and more medical professional liability cases involving the actions or inactions of PAs and nurse practitioners [NPs]," says Barton. The roles and responsibilities of these individuals have changed tremendously over the past 40 years. Initially, the roles of PAs and NPs were to assist the physician in the provision of primary care for well children and those with acute minor illnesses. Over time, subspecialty areas developed for NPs and PAs have been used extensively in inpatient and outpatient surgery departments. It is easy to appreciate how economic pressures encouraged their increased use and expanded roles.1
Clearly, PAs and NPs can enhance the quality of a medical practice. However, the use of PAs and NPs in private practice can increase the risk of liability if these allied health practitioners' (AHP) roles and responsibilities are not clearly defined. A review of medical professional liability suits found the following factors specific to the practices of PAs and NPs2:
- Absence of policies and procedures.
- Absence of written practice guidelines.
- Failure of the PA or NP to refer to or collaborate with a physician.
- Inadequate supervision on the part of the physician.
- Assumption of too much responsibility on the part of the PA or NP.
In this case, the PA was aware that the patient had been seen two days previously in the ED. This should have been a signal to increase the level of scrutiny. Thus, the PA should have called on appropriate physician backup and, if it was not available, should have referred the patient back to the ED. The PA also could have referred the patient to a specialist and/or ordered additional tests (lab or X-ray) on an urgent basis. The PA also could have asked for the ED records and/or consulted with the ED physician so that there could have been a more thorough and collaborative review of the patient's progression of symptoms. The PA should have documented thoroughly and then had the supervising physician review the case as soon as possible and call the patient within 24 or 48 hours to get a status report and thus create another opportunity to intervene.
Clearly, there was both a failure on the part of the PA to refer to the supervising physician or a specialist as well as inadequate supervision on the part of the physician. There should have been clear protocols on how the PA was to deal with the situation, especially considering that the patient had been to the ED only two days prior to her visit to her primary care physician. Perhaps the protocol would have said patients who are being seen for the same or similar symptoms within two days of a visit to the ED must be referred to a specialist.
Understanding the education and licensure of both PAs and NPs is the first step to developing appropriate roles and responsibilities for them. Based on the education and licensure of the PA and NP, the physician can develop a Position Description that specifies the specific duties of the AHP. This position description should define the scope of practice, taking into consideration state law and the education and licensure of the specific AHP. Some physicians may wish to enter into a Practice Agreement that details the collaborative practice arrangement between the AHP and the supervising physician as well as any "covering" physicians. Then the physician needs to develop Policies and Procedures that outline the hiring, training, evaluation, supervision, monitoring, and dismissal of AHPs. In making the decision to hire an AHP, the physician is committed to performing a credentialing checkincluding verification of education, training, and employment to assure clinical competence, and a criminal background check. Following such policies and procedures, Practice Protocols that identify which patients are appropriate for a PA- or NP-only visit, which patients require collaboration, and which require referral to the physician, need to be drafted. Until there is evidence that the PA or NP is practicing competently, the physician should monitor his or her practice closely and delegate more responsibilities only when the AHP's clinical competence is demonstrated.
The existence of these documents will clarify responsibilities so that there can be suitable collaboration and appropriate supervision with each health care provider playing the role he or she is competent to play and providing patients with the level of care they deserve.
References
- Case No. GD-03-023868, Allegheny County (PA) Court of Common Pleas.
1. Committee on Hospital Care, American Academy of Pediatrics. The role of the nurse practitioner and physician assistant in the care of hospitalized children. Pediatrics 1999; 103:1,050-1,052.
2. Perspectives on Clinical Risk Management. Nurse practitioners and physician assistants: Some risk management concerns. Accessed July 3, 2008, at www.massmed.org/cme.
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