Failure to timely diagnose, failure to order diagnostic tests, and failure to interpret diagnostic tests were the most frequent allegations in malpractice claims involving aortic dissection, according to an analysis of claims filed between 1994 and 2019.1
“Aortic dissection has a clinical presentation that is not very unique, which increases the likelihood that it might be misdiagnosed as another condition,” says Ashwin Palaniappan, the study’s lead author.
Of 135 claims analyzed, 57% resulted in a defense verdict. Allegations of failure to test, failure to refer, and failure to consent were associated with defense verdicts. Failure to diagnose was associated with plaintiff verdicts. “If patients have suspected aortic dissection in the ED, they should be referred quickly to the care of a cardiothoracic surgeon who can manage the dissection,” Palaniappan says.
Aortic dissection can become fatal quickly. “Having surgeons assess patients with a suspected dissection in a timely fashion may reduce medical malpractice litigation,” Palaniappan says.
A recent malpractice lawsuit involved an ED patient who presented with abdominal pain. The man stated he had experienced a pre-existing abdominal aneurysm, and was visiting a cardiologist regularly for follow-up. The EP ordered a CT of the abdomen, which the radiologist report indicated was negative for an aortic dissection, that the aortic stent had not migrated, and that the abdominal aortic aneurysm did not measure larger than what it had measured previously in serial CT imaging. “Despite this radiologic finding, his clinical complaint persisted,” says Matthew P. Keris, JD, a shareholder in the Moosic, PA, office of Marshall Dennehey.
The family was adamant. They wanted the patient to be admitted. The EP attributed the patient’s symptoms to stomach flu that was going around the community. The patient protested, and asked to be admitted. In the end, the patient agreed to discharge. “Within two hours, he coded at home, had a full-blown dissection, and later died,” Keris reports.
The family sued the radiologist, the radiology practice group, the EP, the ED group, and the hospital. “The family was very angry because in their minds, had the patient been initially admitted, he would have been better monitored. A timelier intervention could have been instituted once he coded, and he would have survived,” Keris explains.
It turned out the radiologist misread the CT. Recognizing this, the radiologist and his group settled the claim. Right before trial, the attorney agreed to dismiss the hospital from the case. “This was because plaintiff’s counsel did not want another defense lawyer involved,” Keris notes.
If the hospital was kept in the lawsuit, there would be another defense expert testifying in support of the EP, and another cross-examination of the plaintiff’s experts would take place. The plaintiff attorney also believed the EP and ED group’s insurance policies, totaling $2 million, were sufficient to cover a plaintiff verdict. “They did not believe a verdict would exceed that available insurance. They made the decision to dismiss the deep pocket, which was the hospital, to go after the EP and ED group,” Keris says.
Despite the damaging testimony from the family on the need for admission and the patient’s devastating outcome, the jury returned a defense verdict. These two factors helped the EP defendant prevail:
- The chart indicated the EP spoke to the patient’s family doctor during the first ED visit, and that the doctor agreed with the decision to discharge.
This documentation assisted the EP in showing the standard of care was met by demonstrating the EP was thorough and carefully considered the decision to discharge the patient. “It also helped because it called the plaintiff’s theory of liability into question. If the EP and the family physician made the decision to discharge, why did the patient’s lawyer only sue the EP?” Keris asks.
The ED chart made it appear as though the family physician, when presented with the identical medical information as the EP, agreed with the EP’s decision to discharge. The family doctor was not named in the lawsuit. “Interestingly, the family physician was never deposed, and did not testify at trial,” Keris adds.
If the family physician had refuted the EP’s position (i.e., that they had talked before the discharge), it could have negatively affected the EP’s defense. “It would have called into question the veracity of the EP’s testimony and documentation,” Keris says.
EPs cannot assume any doctors they consult will later recall the conversation. If the EP includes a note indicating he or she spoke with the doctor, it could be a fact issue. A good plaintiff’s lawyer will follow up with that other doctor. “If the doctor later denies ever speaking with the EP, that’s going to be a real issue for the defense,” Keris warns.
The other doctor might not document the informal call with the EP in the patient’s chart. “If they do not document it, nor remember the conversation, it may be the EP’s word against the other physician regarding their involvement,” Keris offers.
A way to prevent a “he said/she said” situation with a consulting physician is to send a correspondence to that clinician that summarizes the conversation. “It is hard for that consulting physician to later deny what is written, especially if no objection is raised at the time of the correspondence,” Keris observes.
- The jury ultimately agreed with the ED’s experts, that it was reasonable for the ED to discharge the patient by relying almost solely on the radiologist’s report.
The report indicated the abdominal aortic aneurysm size remained unchanged, that the stent was in place, and that there was no active abdominal bleeding. “Until trial, the EP was not averse to the radiologist’s interpretation that the CT of the abdomen was normal,” Keris explains.
However, the EP’s defense attorney had an undisclosed report that was critical of the radiologist for misreading the study. The ED’s radiologist expert opined the treating radiologist had grossly misread the abdomen CT. After the treating radiologist settled the case, and just before trial, the ED’s attorney produced the report and wanted to present expert testimony to the jury indicating the radiologist misread the initial CT study. “Because this occurred so close to trial, the judge would not let the expert testify because it prejudiced the patient’s case,” Keris notes.
Up until that point, the EP and the radiologist had maintained a unified defense. The plaintiff attorney was not going to produce any evidence against the radiologist, since the attorney already settled the case with those defendants. At that point, the plaintiff attorney wanted the jury to focus on the EP’s alleged wrongdoing.
Since part of the EP’s defense was to argue the radiologist’s report was incorrect, the EP had to point the finger at the radiologist. The EP wanted to argue it was reasonable to rely on the benign CT imaging report in deciding to discharge the patient, and also argue the radiologist was the one who had committed the negligence that caused the patient’s death.
“Because the EP’s attorney did not produce the radiologist’s report sooner, they were not allowed to present the expert’s testimony,” Keris recalls.
The reason the EP’s defense attorney did not produce the report was that if the two defendants were averse to each other, then it made the plaintiff’s case easier. Once the defense radiologist and his group settled the case, the EP’s attorney did not have to worry about adverse evidence from the radiologist.
“If the EP’s radiology expert was allowed to testify that the settling radiologist was negligent, that testimony would have helped the EP,” Keris says. In retrospect, the decision to discharge the patient was wrong. Despite the existence of the abdominal aortic aneurysm and the patient’s clinical complaints of extreme abdominal pain, the EP received a defense verdict. The defense won the case mainly because of the documented interactions between the EP, the radiologist, and the family physician. “The jury believed it was reasonable for the EP to rely on the opinions of others, despite an obvious error,” Keris says.
- Palaniappan A, Sellke F. Medical malpractice litigations involving aortic dissection. J Thorac Cardiovasc Surg 2020; Oct 29;S0022-5223(20)32886-5. doi: 10.1016/j.jtcvs.2020.10.064. [Online ahead of print].