News: A patient sought treatment for severe headaches, blurry vision, and numbness in her left arm. A neurologist treated the patient’s migraines for years but discharged the patient without further follow-up care. Years later, physicians diagnosed a brain tumor while treating the patient for a head injury. The patient filed a lawsuit against both the neurologist and hospital where she sought initial treatment. A jury found the neurologist liable and awarded $3.35 million. The hospital was not found liable.
Background: In 2009, a 33-year-old woman was admitted to a hospital, seeking treatment for severe headaches, blurry vision, and numbness in her left arm. A neurologist examined the patient and concluded she was suffering from migraines. The neurologist ordered an MRI, which revealed abnormalities in the patient’s right frontal lobe, but failed to refer the patient to a neurosurgeon for treatment. The neurologist continued to treat the patient for migraines from 2010 to 2014.
Years after the initial hospital visit, the patient suffered a significant head injury at work. She was treated by different physicians who diagnosed the patient with a brain tumor approximately five years after the initial hospital admission. By this time, the tumor had increased in size and nearly invaded the patient’s entire brain. The patient received extensive whole brain radiation treatment once the tumor was properly diagnosed, but she suffers from severe short-term memory loss and cannot drive or work because of her condition.
The patient filed a lawsuit against the neurologist and the hospital where she was initially admitted. The patient alleged the neurologist’s failure to diagnose the brain tumor and failure to refer the patient to a neurosurgeon despite the abnormal MRI constituted medical malpractice. The patient argued if the neurologist had properly diagnosed the tumor and discharged her with proper follow-up care, the permanent and severe brain injury would have been prevented or would not have been so severe. The patient claimed the neurologist was acting as an agent of the hospital during the initial visit and failed diagnosis in 2009. The patient did not allege the hospital was directly negligent, only that the hospital bore liability for the physician’s actions. The defendant physician and hospital denied liability.
After a two-week trial and eight hours of deliberation, the jury found the neurologist liable for failing to diagnose the tumor. The jury also concluded the hospital was an agent during the 2009 visit, but the hospital was not liable, as there was no agency relationship between the neurologist and hospital between 2010 and 2014. The jury awarded the patient $3.35 million in damages.
What this means to you: In this case, the physician’s liability was a case of failure to diagnose, a particularly concerning result given the physician’s treatment of the patient over the course of more than four years. A failure to diagnose, or a delayed diagnosis, can cause significant injuries or dramatically worsen the patient’s condition. This case is no exception as the patient alleged the physician’s failure to diagnose the tumor in 2009 enabled the tumor to grow and spread, causing far more pervasive injury by the time the treatment occurred in 2014. While the defendant physician denied liability, the physician failed to present sufficient evidence or explanation, particularly in light of the abnormal MRI. When the patient suffered her head injury five years later, physicians immediately diagnosed the brain tumor.
Migraine headaches are most common in women from their teens to middle age. Physicians look to that diagnosis first, as brain tumors are much less likely to be the cause of headaches. However, without specific diagnostic proof the patient is suffering from a migraine, other possible causes of headaches should be ruled out. The neurosurgeon appropriately ordered the MRI but neglected to follow up on abnormalities reported in the radiologist’s findings. Additional studies, such as EEGs and serial MRIs ,would have revealed changes in these abnormalities and in brain activity, resulting in the correct diagnosis earlier, giving the patient an opportunity for a much better outcome. The assumption of the common diagnosis in the face of evidence to the contrary is negligence on the part of the physician.
Although the patient brought the malpractice litigation against both the individual physician and the entity hospital, the jury only assigned liability to the physician. The patient argued the hospital bore liability because the physician was its “agent,” a special relationship whereby the principal is responsible for the actions of the agent, and thus bears liability for the agent’s actions. This also is known as vicarious liability. It often arises in the context of employment relationships, where an employer is responsible for the actions of the employee if those actions were within the course and scope of the employment. In the medical context, an individual physician may be determined to be an agent of an entity such as a hospital, surgery center, or other such group, depending on the facts and circumstances of the case.
The existence of an agency relationship is a factual question a jury must decide while reviewing the relationship between the two parties. Many factors can influence this decision, such as whether the principal and agent engage in the same occupation, the level of skill required to perform the agent’s work, who supplies the workplace and tools, the length of the relationship, the parties’ intent, and — often most important — whether the principal has the right to control the agent. In this case, the jury reviewed the circumstances and made two determinations: The physician was an agent for the hospital in 2009, but the physician was not an agent for the hospital in 2010 through 2014. This was premised primarily on the hospital’s representations that it was a complete provider of medical care and based on the physician’s uniform.
However, once the patient was treated at the neurologist’s own office rather than at the hospital, this agency relationship ceased to exist. As a result, the hospital was not liable for the physician’s subsequent actions. This was fortunate for the hospital as the jury cleared the hospital of any wrongdoing. Care providers, particularly entities or groups rather than individuals, should carefully examine such relationships with physicians and other individuals working underneath them, with particular concern of how potential agency relationships are viewed.
If a hospital exercises complete control over how physicians operate, provides the place and tools, provides or requires uniforms bearing the hospital’s identification, and other circumstances that strongly point to a specific relationship, such factors will be highlighted by a medical malpractice plaintiff who seeks to attribute fault to both the individual physician and the hospital. Such an agency relationship may be unavoidable, but providers should be cognizant of these possibilities and realities to prepare for these determinations in malpractice litigation. It also is important to know when agency relationships do not exist, as in this case, where the physician’s primary treatment occurred beyond the reach of the hospital. A hospital or care center should draw attention to these important distinctions and changes in time to prevent an improper and overly expansive determination of vicarious liability. Most hospitals now post signage with information about its relationship with the physicians on staff. Admission paperwork also might explain this relationship and require the patient’s initials to validate their understanding. Most hospitals consider physicians as independent contractors who are practicing under the licensure of the state in which they practice, rather than hospital employees.
- Decided June 24, 2021, in the Circuit Court of DuPage County, Illinois, Case Number 2016-L-613.