Legal Review & Commentary

Hospital fails to discover woman's brain tumor: $11.2 million settlement

By Jon T. Gatto, Esq.

Blake J. Delaney, Esq.

Buchanan Ingersoll & Rooney

Tampa, FL

News: A mother went to two area emergency departments on three consecutive days, complaining of nausea, vomiting, headaches, and numbness in her extremities. Each time, she was prescribed medication to treat the nausea, diagnosed with a possible gastrointestinal infection, and sent home. Just days after her third ED visit, the woman passed out and fell down a stairway. She was taken to a third hospital, where a CT scan showed a brain tumor, and physicians determined that the woman had suffered a brain infarction. The woman, who was rendered permanently blind, paralyzed, and brain-damaged, sued the first two hospitals and the three ED physicians who had treated her, claiming that a CT scan should have been ordered during her visits, which would have revealed the tumor and averted any permanent brain injury. She claimed that the procedure was not performed because she was a Medicaid recipient and did not have private insurance. A jury returned a verdict of $11.2 million in favor of the plaintiff.

Background: A 20-year-old stay-at-home mother went to the ED four months after giving birth, complaining of nausea, vomiting, headaches, and numbness in her face, arms, and legs. She was seen by an ED physician, and after a routine neurological exam found no problems, she was sent home with a prescription to treat nausea. The next day she returned to the ED, but this time at a different hospital, complaining of increased numbness in her lips, arms, and legs and a continuation of the headaches. After a routine pregnancy test showed she might be pregnant, the ED physician related her symptoms to gastrointestinal issues from an infection caused by the production of toxins, and he prescribed her medication for the discomfort. Again, the doctor sent her home. The next day, and still experiencing the same symptoms, the woman returned to the second hospital, and another pregnancy test showed that she might not have a viable pregnancy. The physician believed that the likelihood of a brain tumor was "very very low," and the woman again was sent home.

Days after her third ED visit in a week's time, the woman passed out and fell down a stairway in her mother's home, leaving her unconscious. She was taken to a third hospital by ambulance, where a CT scan showed a brain tumor, necessitating emergency surgery. Physicians at the third hospital determined the woman had suffered a brain infarction, similar to a stroke.

The woman was rendered permanently blind and was told she will suffer from hemiparalysis on her right side and cognitive brain defects for the rest of her life. She also was told she will be confined to a wheelchair for the rest of her life due to the extensive injuries; and although she can still talk, she has the cognitive level of an eighth-grader. She cannot care for her now 4-year-old child, cannot walk, and needs assistance eating.

The woman sued the first two hospitals and the three ED physicians who treated her at those hospitals, alleging medical malpractice. She claimed that the physicians and the hospitals' staff failed to meet the standard of care because a CT scan never was performed to rule out a brain injury. She argued that the defendants overlooked the symptoms of a brain tumor on the three occasions when she initially visited the ED, and that the undetected brain injury caused her to lose consciousness days later, leading to her collapse down the stairs of her mother's home. She maintained that when a patient with her symptoms arrives at the hospital, there is a 72-hour window in order to provide appropriate treatment, and that if the CT scan had been ordered and performed, the brain tumor would have been discovered. By placing her on steroids and performing a brain surgery, her permanent brain herniation injury could have been averted. The plaintiff maintained that the fact that she reported numbness in her extremities on all three occasions should have indicated to the physicians and the hospitals that she may have been suffering from a neurological injury instead of just morning sickness. She also claimed that in the event the jury found no liability on the part of the hospitals' staffs, the hospitals should nevertheless be liable because the physicians were acting as the hospitals' apparent agents.

Throughout the trial, the plaintiff emphasized that the defendants' treatment decisions were guided by the fact that she was a Medicaid recipient. She claimed that the hospitals and physicians did not want to treat her, because she did not have private insurance and because Medicaid would have paid only $135 for the CT scan, which the hospitals would normally have billed out at a cost of more than $3,000. She argued that if she had not been on welfare, the defendants would have done the CT scan and discovered the brain tumor immediately.

The defendants contended that they met the standard of care while treating the woman. They asserted that the woman told only one of the physicians that she felt numbness in her extremities and that she soon thereafter told the same physician she felt better after being discharged. The defendants also pointed out that physical neurological tests were performed in response to the numbness in the plaintiff's extremities, and that the tests did not reveal anything to suggest she had suffered a brain injury or tumor.

The defendants also presented expert testimony that the woman had a rare form of cancer that is often hard to diagnose in patients who are young and otherwise healthy, and that the woman's symptoms were readily explained by dehydration, vomiting, and hyperventilation. In addition, the fact that the woman returned a positive pregnancy test (although ultimately proved to be incorrect) provided an explanation for some of the woman's less severe symptoms. Finally, the defendants disputed that the woman had actually sustained a brain herniation, asserting instead that she had sustained a metastatic gestational choriocarcinoma tumor in her brain, which was ultimately resected surgically and treated with chemotherapy.

The plaintiff claimed that she would require $29 million in future medical and life care costs, as she expected to live for an additional 63 years, requiring 24-hour attendant care. She pointed out that although her family had undertaken to care for her up through the trial, they could not be expected to meet her increasingly extensive medical needs. The defendants countered that the woman's life care claims were too expensive because the care required could be obtained at a lower cost.

The woman also requested compensation for appropriate past and future pain and suffering damages, as well as between $1,201,505 and $1,385,957 in past and future wage loss damages, based on the premise that the woman would earn the minimum wage through age 67.

Four years later, and after a 2½-week trial that featured six expert witnesses for each side, a jury found that the three ED physicians were liable for the plaintiff's injuries, because their misdiagnosis of her brain tumor caused the plaintiff to suffer multiple permanent disabilities. The plaintiff was awarded $11,200,537 in damages, with $5.9 million representing the expense of her future medical bills and the care of her 4-year-old daughter. The hospital was found to be liable for the conduct of the physicians.

What this means to you: "This patient clearly brought a claim for breach of an acceptable standard of care under Pennsylvania tort laws, but the patient and the legal firm representing her also felt that she had suffered economic discrimination as the reason that the hospitals did not follow through with more definitive diagnostic testing," says Lynn Rosenblatt, CRRN, LHRM, risk manager at HealthSouth Sea Pines Rehabilitation Hospital in Melbourne, FL, "What they were alleging is a violation of federal law, known as EMTALA [Emergency Medical Treatment and Active Labor Act]."

EMTALA, part of the Consolidated Omnibus Budget Reconciliation Act of 1986, is a statute that governs when and how a patient may be refused treatment or transferred from one hospital to another when he or she is in an unstable medical condition. Sometimes referred to as the "COBRA Law," it also is known as Section 1867(a) of the Social Security Act and is part of the section of the U.S. Code that governs Medicare.

Its provisions apply to all patients and not just to Medicare patients. The avowed purpose of the statute is to prevent hospitals from rejecting patients, refusing to treat them, or transferring them to "charity hospitals" or "county hospitals" because they are unable to pay or are covered under the Medicare or Medicaid programs.

This purpose, however, does not limit the coverage of its provisions. Any patient who comes to the ED requesting "examination or treatment for a medical condition must be provided with an appropriate medical screening examination to determine if he is suffering from an emergency medical condition." The statute imposes an affirmative obligation (legally mandated under penalty of law) on the part of the hospital to provide a medical screening examination to determine whether an "emergency medical condition" exists and to institute treatment if an "emergency medical condition" does exist. If the patient does not have an "emergency medical condition," the statute imposes no further obligation on the hospital.

Under the statute a medical condition is defined as "a condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in serious impairment to bodily functions or serious dysfunction of any bodily organ or part." It further states that denial of care will, in fact, result in placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy.

There have been several cases where state courts have ruled that if the patient is erroneously diagnosed, and the physician mistakenly believes that there is no "emergency medical condition," when one indeed existed, that the statute does not apply. As in this case, the patient's claim would then be for professional negligence for failure to make a diagnosis under state malpractice laws.

Yet there have been other cases that differ substantially in that regard. Courts have found hospitals liable for violation of EMTALA for failing to diagnose emergency medical conditions due to inadequate screening procedures. Many of these cases involved the failure of the treating ED physician to follow a "standard diagnostic protocol."

Other cases have found that the statute was not violated because a screening examination was done, even though the resulting diagnosis was in error, and grave harm occurred to the patient as a direct result of the negligent actions or malpractice of the physician in his failure to consider other possible causes for the patient's complaint. Only disparate treatment in the screening process itself would support an EMTALA claim.

Based on the above discussion, this case does not appear to be a typical EMTALA violation, as the physicians at both hospitals did perform "a medical screening examination to determine whether an emergency medical condition exists and to institute treatment if an emergency medical condition does exist." Unfortunately, they did not properly assess the patient's symptoms, thereby arriving at a "false diagnosis," which precluded the inclination to do any additional testing.

Had the ED staff collected a proper history, the condition from which the patient suffered may have surfaced as a possible consideration and would have triggered a CT scan as a reasonable progression in a basic emergency assessment. The physical neurological testing that was done most likely was not sufficiently sensitive to have detected a lesion deep in the brain, particularly if the symptoms were early onset.

The young woman presented four months after delivery of a viable infant complaining of nausea, vomiting, headaches, and numbness in her face, arms, and legs. From the narrative, it appears that the first physician ruled out any neurological cause and focused on the nausea and vomiting. The second physician took it a step further and ordered a pregnancy test, which initially was positive. This physician also failed to consider the numbness, which had gotten worse since the ED visit the previous day, and again focused on what he most likely considered morning sickness, even though numbness in face, arms, and legs are not commonly reported symptoms of that condition.

At this point, both physicians were guilty of poor judgment in not fully evaluating the patient's presentation against her recent postpartum history. However, the narrative does not indicate if a GYN history was even taken and if any other symptoms such as prolonged vaginal bleeding, uterine cramping, or the return of normal menses after her delivery were even considered.

At the third ED visit, the supposedly positive pregnancy test now indicated a questionably viable pregnancy. There was no indication that any GYN work-up occurred and, at this point, a definite breach of the standard of care occurred. This patient most likely was suffering from gestational trophoblastic disease (GTD), which is a complex of symptoms that happens during pregnancy or shortly thereafter. The cells that cause those problems are the trophoblasts, which form part of the placenta in a pregnant woman.

The pregnancy can be a miscarriage, a tubal pregnancy, or a full-term pregnancy with delivery of a normal baby. GTD is a very curable disease if caught early and treated appropriately. Even a woman with spread of the disease to other organ systems (including the lungs, liver, and brain) can be cured. The most important factor is appropriate diagnosis and treatment by a gynecologic specialist. It is not unusual to have a delay in the diagnosis of this condition to the point where the woman seeks medical attention for problems resulting from the spread of the abnormal pregnancy cells to other parts of the body, such as the lungs (cough, shortness of breath), the vagina (severe bleeding), and the brain (headaches or seizures).

In this case, it is difficult to tell if the GTD was a result of the earlier term pregnancy or of a failed subsequent pregnancy, but the symptoms point to a definite correlation between pregnancy and GTD. Had the connection been made a simple blood test for beta HCG together with a pelvic exam could have established the diagnosis. A CT scan is a common tool for testing for this condition to see whether the abnormal cells have spread to other areas in the body where the abnormal cells may collect and grow to form a tumor; the pelvis, abdomen, liver, lungs, and brain.

Obviously, this is a rather rare condition, which in all likelihood would have required a GYN consultant to make an accurate diagnosis. These were ED physicians with a primary focus on trauma and/or general medicine. A diagnosis of choriocarcinoma may well have been outside the box, but that does not excuse them from exercising sound medical judgment in their physical assessment of the patient.

This woman presented with definite neurologic symptoms indicative of increased intracranial pressure. The nausea and vomiting, coupled with headaches and numbness, are classic complaints of patients with increased pressure within the brain. Loss of balance, repetitive falling, and visual disturbances also are commonly reported symptoms. While this condition can be related to many common activities, as well as trauma, abnormal physiology is a more likely contributor and a brain tumor is at the top of the list. In fact, the third physician actually advanced that possibility but dismissed it. Obviously, had any of the three ED physicians taken the initial screening to a reasonable level of diagnostic aptitude, a CT scan would have been completed and the patient's tumor discovered.

The argument that the physicians were not agents of the hospital but independent contractors is frequently used, but in the case of ED services a finding that the hospital is liable is likely. The hospital provides the space, the equipment, the nonmedical staff, and the group contracted to the hospital provides the medical services and oversight. These physicians can either be paid staff, part of an educational affiliation, or independents, but the hospital as the contracting agent often is found to have assumed liability for their actions.

The argument that the physicians failed to order the CT scan based on the patient's limited Medicaid coverage is very difficult to prove. In any event, the diagnosis was in error and the patient paid dearly, basically with her life, which was reduced to total dependency.

As to the dollar amounts of the settlement, the hospital was unwise to take this type of case to trial. The plaintiff was 20 years old and a new mother. She was unemployed and undereducated, but her quality of life had been cut short. Undoubtedly, those facts would have an effect on any jury. What is the price of a life? A better alternative would have been mediation with a structured settlement such as an annuity.


• Case No. 060303412, Court of Common Pleas of Penn-sylvania, First Judicial District, Philadelphia County.