Don’t let dyspnea take the wind out of your practice

By James Hubler, MD, JD, FCLM, Clinical Instructor of Surgery, Department of Emergency Medicine, University of Illinois College of Medicine at Peoria; EMS Medical Director, Central Illinois Center for Emergency Medicine, OSF Saint Francis Hospital, Peoria, IL.

Dyspnea is defined as the subjective sensation of difficult, labored, or uncomfortable breathing;1 patients frequently describe it as shortness of breath. Dyspnea frequently is encountered in the emergency department (ED), and the differential diagnosis is long and complex. While the number of patients with dyspnea may be numerous, those with a life-threatening diagnosis will be few. The challenge lies in distinguishing those few and recognizing the signs and symptoms that place these patients in a high-risk category.

Since dyspnea is subjective, every patient with the complaint will not have objective findings. The lack of tachypnea or hypoxia does not mean that the patient is not feeling short of breath. ED physicians must consider several possible etiologies, including airway obstruction and cardiac, pulmonary, metabolic, and neuromuscular causes. The diagnosis of psychogenic dyspnea is obviously one that is reserved for patients whose workups have excluded organic causes.

The first step in determining an etiology for the dyspneic patient is a detailed history and physical exam. This will help limit the differential diagnoses and guide physicians to an accurate diagnosis. Although some patients may require extensive testing, emergency physicians must rule out the life-threatening etiologies with judicious use of ancillary tests. The history, physical exam, and chest x-ray will determine the cause in about two-thirds of patients.2 Patients who, in particular, will benefit from evaluation by chest radiograph are those with mixed diseases (chronic obstructive pulmonary disease [COPD] and congestive heart failure [CHF]), multiple presenting symptoms or complaints, and those whose diagnosis is uncertain. A pulse oximetry reading is essential in the evaluation of a patient with complaints of dyspnea. Evaluation of the patient’s neck veins will help determine a cardiac cause of dyspnea. Jugular venous distention (JVD) is seen with CHF, pericardial tamponade, pulmonary embolus (PE), tension pneumothorax, and right ventricle infarction. The determination of whether a patient has JVD may be difficult in patients with obese necks.

This issue of ED Legal Letter will focus on PE, missed myocardial infarction, cardiac arrhythmias, and myocarditis presenting with dyspnea. While there are more obvious causes of dyspnea, such as pneumonia and asthma, these will be covered separately in subsequent issues.

— The Editor

Case #1: Pulmonary Embolus

In Bickham v. Grant, et al,3 18-year-old Tamara Bickham gave birth to a son on Oct. 6, 1991. After her discharge, she returned to the ED on Oct. 15 and 18. On Oct. 15, she was diagnosed as having a bladder infection and was prescribed an antibiotic. She returned on Oct. 18 complaining of chest pain and "pain with breathing." Her respiratory rate was above 20 breaths per minute. Despite her complaints of dyspnea, the ED physician’s initial diagnosis of bladder infection was not changed and she was prescribed a different antibiotic. On Oct. 22, her third trip to the ED, she was admitted with a diagnosis of endometritis.

Dr. Grant, her obstetrician, began treating her on Oct. 22. The initial set of vital signs, taken by the nurse at around 8 a.m., demonstrated a respiratory rate of 20 breaths per minute. At around noon, her respiration rate increased to 35. Her respiratory rate went as high as 40 the next day, and she remained tachypneic during her entire stay.

A leg deep-vein venous thrombosis was diagnosed, and she was started on intravenous heparin therapy. Despite the patient’s complaints of breathing difficulties and chest pain, a lung ventilation perfusion scan (V/Q) to detect PEs was not ordered. Dr. Grant opted to monitor her for the possibility of a PE by performing chest x-rays, listening to her lungs, monitoring her arterial blood gases, and utilizing general clinical observations. On Nov. 3, Dr. Grant suspected PE, and a V/Q perfusion scan was ordered (the first such scan ordered during the patient’s 14-day hospital stay). The lung scan showed she had a PE. Blood flow to the left lung was completely blocked, major blood flow to the lower part of the right lung was blocked, and there were scattered clots in the upper part of the right lung. A pulmonologist was consulted and it was determined that Ms. Bickham should be transferred to another hospital for placement of a wire basket (Greenfield filter) in her vena cava to prevent any further clots from reaching her lungs. She was transferred at 7 p.m. on Nov. 3, and the following day, the physicians at the second hospital determined that Ms. Bickham had deep-venous thromboses in both legs, all throughout her vena cava, and extending to her thorax. She died one week later of a massive PE.

The defense physician experts testified that a V/Q was not required at the time the leg clot was diagnosed, because there were no indications of a PE prior to Nov. 3. They based their opinions on the fact that when the nurses called Dr. Grant on Nov. 1, Dr. Grant listened to Ms. Bickham’s lungs and ordered a chest film and arterial blood gas test. Dr. Grant also observed Ms. Bickham eating a full meal, and she did not complain of any shortness of breath. Further, the arterial blood gas test did not show a decrease in oxygen content until Nov. 3. The jury found for the defendant physicians, including the ED physician. However, on appeal, the treating obstetricians, Dr. Grant and Dr. Harris, had their case remanded for retrial.


An accurate diagnosis of PE potentially could have been made in this patient during her second visit to the ED. She had complaints of dyspnea and pleuritic chest pain (chest pain with breathing). Her recent delivery, coupled with her tachypnea, should have alerted the ED physician that she had a high risk of PE. Although the triage nurses frequently record a respiratory rate of 20, this actually is considered tachypnea in a young, otherwise healthy adult. Unfortunately, the patient in this case had an anti-thrombin III deficiency, predisposing her to blood clots. The diagnosis was made at age 7 and was included in her medical records. Though in this case the jury did not find the ED physician to be negligent, the case illustrates the need for ED physicians to review medical records.

It is most likely that the patient in this case had another PE when her respiratory rate increased from 20 to 40 on the first day of admission. Her admitting physician ordered repeat chest x-rays and arterial blood gases to assess the need for a V/Q perfusion scan. Physicians need to be cognizant of this type of error in management. The lack of an arterial alveolar (A-a) gradient or hypoxia should not delay the use of appropriate definitive diagnostic tests. The fact that the patient was eating and appeared well led to a delay in definitive diagnosis of PE by the admitting physician.

While the patient in this case did complain of chest pain and pain with breathing, clinicians must recognize that PE may present with isolated dyspnea. Up to one-third of patients presenting to the ED with PE may present with dyspnea without chest pain.4 The V/Q scan, which has been used to detect PE, has numerous limitations. Only a normal V/Q scan can exclude the diagnosis, and this interpretation is relatively uncommon. A PE can be found on angiography following a low probability scan in 12% of patients.5 If PE is highly clinically suspected based on the individual presentation, another diagnostic test is indicated. Contrast enhanced spiral (helical) computed tomography (CT) is able to accurately image pulmonary vasculature. Currently, helical CT is most accurate for large, central emboli and is insensitive for small clots in the periphery.6 Helical CT or angiography is indicated in those who may have a nondiagnostic V/Q scan. Those patients with COPD, sarcoidosis, heavy cigarette use, pulmonary fibrosis, or those with infiltrates on chest radiograph should initiallyhave a helical CT rather than a V/Q scan.7

Case #2: PE Presenting with Cough

In McCrery v. Willis Knighton Medical Center, et al,8 Dr. Leopard treated Mrs. McCrery for several days for shortness of breath. Her symptoms included dry cough, low-grade fever, and fatigue. He referred her to an internal medicine specialist, Dr. Reeves, on April 18, 1990. That day, Mrs. McCrery’s husband telephoned Dr. Leopard when her condition worsened. After Dr. Reeves agreed to accept the referral, Dr. Leopard directed Mrs. McCrery to the Willis Knighton South Medical Center ED for evaluation and admission to Dr. Reeves’ service. She arrived at about 12:15 p.m.

The ED physician, Dr. Crook, examined Mrs. McCrery, ordered diagnostic tests, and reported to Dr. Reeves, who gave verbal orders to admit her to the hospital with a diagnosis of bronchopneumonia. She was taken to a hospital room about 2:30 p.m. The nurse called Dr. Reeves’s office several times during the afternoon to confirm his awareness of admission and to report concern about the patient’s condition. She reported the vital signs and test results. During the next approximately three hours, Dr. Reeves ordered tests and treatment for Mrs. McCrery by telephone, but did not go to the hospital to examine her or review the hospital records or test results.

The nurse telephoned Dr. Reeves at 6:15 p.m., and told him Mrs. McCrery’s oxygen level was inadequate and she was cyanotic. Dr. Reeves asked the nurse to review results of all tests. The nurse also discussed the results of the cardiac enzyme tests, which were abnormal. Still not having examined her, he ordered her transferred to the intensive care unit (ICU). Dr. Reeves arrived at the hospital at 7:20 p.m., as Mrs. McCrery was being moved to the ICU. He was concerned that she was having a heart attack, and had called a cardiologist for an emergency consult. Mrs. McCrery went into cardiac arrest at 8:05 p.m., just as the cardiologist arrived. He and Dr. Reeves managed to briefly resuscitate Mrs. McCrery before pronouncing her dead at 8:45 p.m.

The autopsy showed the cause of death to be a "saddle emboli," or a PE completely obstructing both main pulmonary arteries. The PE noted in the autopsy was layered, indicating it had grown over a period of time — at least hours, and perhaps days. The trial court found that Dr. Reeves’ failure to attend to Mrs. McCrery and examine her in person violated the standard of care required of him as a physician, and deprived her of a chance of survival. The court determined that she would have had a 20% chance of survival if not for Dr. Reeves’ malpractice.

The experts agreed that a PE is difficult to diagnose and is more often missed than accurately diagnosed. The experts also agreed that the appropriate treatment was heparin, which inhibits further growth of the clot but does not dissolve the clot. Additionally, experts at that time had limited experience with thrombolytics, since these "clot-busting" drugs, available in 1990, were relatively new, and no information was available at trial to estimate the percentage of successful treatment of pulmonary emboli with those drugs at that time. The trial court concluded, based on the medical testimony, that survival was possible but not probable.

The appellate court believed the record, and allowed the conclusion that treatment was available that would have afforded Mrs. McCrery some chance of survival if administered in a timely fashion. The appellate court opined that the record-negated plaintiff’s contention that Mrs. McCrery had a greater than 50% chance of survival with proper and timely attention by Dr. Reeves. The appellate court relied heavily on expert testimony that diagnosis of the condition is difficult, due to the similarity of the symptoms with other diseases, and that pulmonary emboli very often result in death even under the most ideal circumstances of prompt diagnosis and treatment.

The appellate court affirmed the trial court’s finding that Mrs. McCrery’s lost chance of survival was 20%. The appellate court affirmed the award of $300,000 as the proper amount for the survival action of Mrs. McCrery, reducing that amount by the 20% multiple to $60,000. The court similarly reduced the plaintiff’s award for wrongful death from $250,000 to $50,000.


If the elements of duty, breach of that duty, causation, and damages are proved by a preponderance of the evidence, then a physician has committed professional negligence. The lost chance of survival is used in this case to reduce the damages by the percent of the patient’s lost chance to survive. As emergency physicians, lost chance of recovery can be very dangerous. Those patients who present with high-risk or unstable conditions still may succeed in litigation if the care given was not within the standard of care. Plaintiffs do not need to prove that the patient had a 50% chance of survival. They need only prove some lost chance — as in this case, in which it was determined to be 20%.

Patients presenting with cough may have a PE. Obviously, this does not mean that emergency physicians need to rule out PEs in every patient who presents with a cough. This case illustrates the need to seek out other diagnoses when a treatment plan is not working. Although in many cases the question will be whether the illness (pneumonia or bronchitis) and the subsequent immobility led to a sudden PE or the embolus evolved and grew, as was demonstrated on autopsy in this case.

This case demonstrates the need for admitting physicians to timely evaluate patients. The duty of admitting physicians to come and evaluate patients even may need to take place in the ED. ED physicians must accurately represent their patients’ conditions and document this in the medical records. Also, they should document the time that contact is made with the admitting physician.

Case #3: PE Presenting with Cough

Malpractice cases involving PE presenting with shortness of breath and cough are not uncommon. In Dumont v. Salem Maaliki, et al,9 the patient visited a Louisiana clinic on Nov. 15, 1995. A nurse recorded a weight of 255 pounds and normal vital signs. The patient complained of shortness of breath, dyspnea on exertion, a dry cough, and headaches. The treating physician reviewed the chart and discovered that Mrs. Dumont was a prior patient of the clinic. She had, in the past, complained of chest pain, shortness of breath on exertion, sweating, palpitations, and weakness. She also was an insulin-dependent diabetic. Furthermore, the patient informed the physician that she had been in the ED for "hip trouble" several weeks earlier.

In his examination of Mrs. Dumont, Dr. Maaliki noted that her vital signs were stable and she did not exhibit any swelling in her arms or legs. Mrs. Dumont’s lungs were clear, and her heart sounds were normal. She had no clinical signs of shortness of breath at rest. She was diagnosed with bronchitis, prescribed an antibiotic, and scheduled for a follow-up visit on Nov. 21. Mrs. Dumont left the clinic, and her condition worsened until her death on Nov. 18. At no time prior to her death did she seek further treatment. An autopsy report indicated that the cause of Mrs. Dumont’s death was a massive PE.


The salient point of this case is that physicians need to identify risk factors. This patient had multiple risk factors for both pulmonary emboli and coronary artery disease. The fact that she had these complaints in the past may help in the defense of the treating physician; however, this does not absolve the physician when there is a misdiagnosis. Physicians should not exclude the diagnosis of life-threatening conditions based on previous visits or complaints until a reasonable workup has been performed.

Cough may be caused by asthma, allergic reactions, CHF, pneumonia, PE, and even gastroesophageal reflux. Physicians should not be mislead by the presence of a low-grade fever, as this is a nonspecific finding and may be encountered with a PE. However, the fever with PE rarely is higher than 102oF.10 Physicians need to investigate both tachycardia and tachypnea for sources. A common, unrecognized source of tachycardia may be fever. A rectal temperature (particularly in the elderly and in children) will give a much more accurate reading than an oral temperature. This particularly is true in patients who are tachypneic, as rapid oral respirations will give a falsely low temperature. Pulse oximetry is essential in all patients who complain of shortness of breath. However, a normal value does not exclude a PE. In, fact the oxygen saturation may be normal in 25% of patients with PE.11

Patients who may have CHF, pneumonia, or COPD may require a chest radiograph to help determine the etiology of their dyspnea. Young patients or patients without comorbid disease can be diagnosed with bronchitis or pneumonia on the basis of clinical findings and history. However, physicians should have a low threshold in ordering chest x-rays on repeat visits or when a patient’s symptoms are not improving.

Case #4: Syncope

In Logacz et al., v. Limansky12, the patient had a hysterectomy on May 18, 1992. According to the records, she was obese (she weighed more than 300 pounds), suffered from high blood pressure, and had blood in her stools. She took birth control pills, was short of breath, tired easily, and led a sedentary life. Two days after her hysterectomy surgery, as she recuperated in the hospital, she suffered a dizzy or fainting spell, and fell. The nurses on duty at the time called Dr. Limansky to report the incident. He ordered an immediate electrocardiogram (ECG). Although the ECG test results were abnormal, Dr. Limansky failed to direct a further workup prior to releasing the patient from the hospital. (The computer-generated report on the ECG read: "Sinus tachycardia. ST and T wave abnormality. Consider inferior ischemia. Abnormal EKG [ECG]. Unconfirmed.") She remained in the hospital for four days before being discharged to her home on May 22.

On May 30, at about 8 p.m., while convalescing at home, the patient suffered another dizzy spell and required transport by paramedics to the ED of the Brea Community Hospital. There, she was described as having a syncopal episode. Dr. Maddex, the ED physician, performed a physical examination that revealed a temperature of 100ºF. He ordered an ECG, which again showed an abnormal result, again suggesting ischemia and tachycardia. Dr. Maddex ordered her records from Queen of the Valley Hospital (where the hysterectomy had been performed). He then called Dr. Limansky, at approximately 12:31 a.m. on May 31, to confer about the diagnosis and treatment. Despite the abnormal ECG results, Dr. Limansky determined that the patient could be discharged, and indicated he could see her the next day if there was a problem. She was released from Brea Community Hospital at 12:40 a.m. on May 31.

Dr. Limansky saw the patient on June 2. She apparently had no complaints at that time and he noted in his records: "Skin healing well. Will see her in six weeks." He did not request or review the records from her May 30 visit to the ED of Brea Community Hospital. On the afternoon of June 4, the patient experienced chest pain and shortness of breath. She looked pale, appeared to be staring off into space, appeared ill, and was having trouble breathing. She went to the ED, arriving at 4:54 p.m. on June 4. She complained of right-side chest pain and mid-abdominal pain. She had a pulse rate of 142 beats per minute, respiratory rate of 40, and blood pressure of 157/50 mmHg. The ED doctor suspected PE and considered using heparin. However, the heparin was withheld due to concern about the risk of internal bleeding. The patient went into cardiac arrest at 5:33 p.m., just over 35 minutes after her arrival at the hospital. Despite all efforts to revive her, she died. A subsequent autopsy determined that the cause of death was acute bilateral PEs.

The plaintiffs’ expert offered evidence as to causation, stating that he believed the patient suffered from pulmonary emboli at all times from and after May 20. He considered the PE to be treatable as late as June 2, just two days before her death.

A six-week trial followed, and complicated expert and pertinent medical testimony was presented by both plaintiffs and defendant. The plaintiffs appealed, based upon an errant reading of concurrent causation to the jury. The jury deliberated more than two days, and returned a special verdict which found the defendant to have been negligent in his treatment of the decedent, but, by the minimum margin of 9-3, concluded that the negligence was not a cause of her death.


The judgment of the trial court was reversed and the matter was remanded for a new trial on all issues. The dizzy spell and abnormal ECG were evidence that the obstetrician breached his duty. A cardiac and pulmonary workup was indicated in the ED by the patient’s complaints of dizziness, syncope, abnormal ECG, and history of recent surgery. On the final ED visit, heparin should not have been withheld, although it is unlikely to have had any effect on the outcome. A risk vs. benefit analysis of starting heparin should be done on any patient prior to starting heparin treatment. The patient’s recent surgery and history of bloody stools were relative contraindications to starting heparin, not absolute contraindications.

ED medicine physicians must recognize PE as a cause of syncope. The diagnosis must be considered in obese patients; post-operative or post-delivery patients; those with malignancies; and patients with comorbid risk factors such as diabetes, hypertension, patients taking birth control pills, smoking, or having recently engaged in prolonged travel.

Case #5: Do Not Withhold Heparin

Numerous cases have arisen from both the delay in administration of heparin and inadequate dosing of heparin. In Phico Insurance Co. v. Shirley,13 the patient had a leg injury and later had leg pain and syncope. The patient died of a large PE. The medical issue was the delay in diagnosis and an inadequate heparin bolus of 2000 units given intravenously. In Pepe v. Jayne et al,14 the patient was admitted to Shore Memorial Hospital, Somers Point, NJ, on July 4, 1989, after he sustained injuries in the crash of an ultralight plane. As a result of the accident, the patient suffered trauma to the back and ankle, and a fracture of the first lumbar vertebrae. The patient began to complain of chest discomfort and shortness of breath. A presumptive diagnosis of PE was made. Unfortunately, heparin was withheld for more than 24 hours due to delays in testing. The patient went into respiratory arrest, attempts at resuscitation failed, and he died.

The issue is, why not start heparin therapy? Very few cases have been argued in which the cause of action was inappropriate use of heparin. In one case, the diagnosis of PE was not confirmed, and the patient suffered a hematoma.15 In that case, the patient was admitted to the hospital with a diagnosis of a possible PE. Her treating physician prescribed heparin at a dose of 7,500 units bolus intravenously and 2,000 units per hour. He then placed her in the hospital’s ICU. The next morning, at around 7:30 a.m., the patient began experiencing pain in her right arm, both below and above the elbow, as well as discoloration and swelling. The nurse noted on the patient’s record that there were complaints of pain in the right arm at 9:30 a.m. and the upper arm was slightly swollen, but no hematoma was present. At 11:50 a.m. the patient was still complaining of pain, so the nurse called the physician. Arriving 10 minutes later at ICU, he discovered a large hematoma. He wrapped the arm and elevated it, and immediately reduced the heparin therapy by half. Two hours later, the results of a lung scan showed no PE, and heparin was discontinued. The patient suffered some permanent damage to the right median and radial nerves, and permanent muscle damage in her right hand and arm. The issues in the case were the delay in testing for PE that allowed the heparin to continue and the delay by the nurse in recognizing the injury. The award was $55,000 for loss of income, permanent disability, and pain and suffering, with another $2,376.15 for medical expenses. There were other medical expenses, but these either were absorbed or paid by the hospital.

Despite the adverse outcome in the previous case, the use of heparin should not be delayed until a definitive diagnosis is made. The previous case is an obvious exception. The mismanagement of the hematoma was the main issue, not just the use of heparin. The majority of this type case against physicians premise their claims on failing to start heparin when it is indicated. The delay in testing in both of the previous cases supports the fact that diagnostic tests need to be available 24 hours a day, seven days a week, in most hospitals. The patient with a high clinical suspicion for PE should have heparin started immediately. In patients who the clinician believes have intermediate or low probability for PE, heparin may be withheld until initial radiologic testing is performed. The ED physician should base the starting of heparin on several factors, including patients’ individual risk factors, risk of bleeding (i.e., previous gastrointestinal bleed, recent surgery, etc.), and the time delay in obtaining V/Q scan or CT scan results. Physicians should follow recommended hospital protocols for dosing. Reasons for variation from the protocol should be well documented in the chart. The dosing of heparin should be adjusted according to the weight of the patient.

Case #6: Silent Myocardial Infarction

On Sept. 17, 1981, Elmer Curry complained of a cough and difficulty breathing.16 The Curry family contacted their family practitioner, Dr. Bilyeu, who told them to bring the patient to his office or to the ED. The family took him to the ED. A nurse took a brief history that indicated that the patient had diabetes. Upon arrival, the patient had a rapid pulse rate, a slight fever, and an elevated respiration rate. Dr. Snyder was the ED physician on duty. Dr. Snyder ordered a chest x-ray and a blood-sugar analysis. After reviewing the x-ray, he diagnosed the patient as having pneumonia, prescribed penicillin, and sent him home. The next day, a radiologist interpreted the x-ray and concluded that it represented either pneumonia or pulmonary edema. Snyder never saw the radiologist’s report. The patient reported that he coughed all night and complained that he could not lie down. He returned to the hospital on Sept. 18 and again was seen by Dr. Snyder, who ordered another chest x-ray and several routine admitting tests, but did not order an ECG. Dr. Bilyeu was called, and the patient was admitted. After the Mr. Curry was admitted, Dr. Snyder ordered oxygen for him.

Bilyeu examined the patient at 7 a.m. on Sept. 19. He received the x-rays, took a complete history, and made a physical examination. The radiologist report stated the x-rays probably represented pneumonia, although pulmonary edema could not be ruled out. Bilyeu believed that he had discovered no positive findings that would have indicated a cardiac problem. The patient did not complain of any chest pain, and the doctor suspected the patient had pneumonia. Dr. Summer, a pulmonary specialist, was consulted. Summer examined the patient between 11 and 11:30 a.m. Dr. Summer testified he suspected the patient had a history of cardiac problems, but he did not think the patient had an active problem because the patient showed no current symptoms. The patient denied waking up at night short of breath. He also was coughing up "yellow, thick, blood-streaked sputum," which was consistent with pneumonia. Summer found no physical signs consistent with CHF. The patient denied having any chest pain, although he had a one-year history of exertional chest pain. Summer concluded the patient had pneumonia rather than a cardiac problem. At 3 p.m., Summer ordered the concentration of oxygen that the patient was receiving be increased.

Later in the evening, nurses called Summer and told him that the patient was getting worse. Summer requested the transfer of the patient to the intensive care. Summer arrived at the hospital as the patient was being transferred. Shortly after the patient arrived in the intensive care unit, he went into respiratory arrest. Summer tried to resuscitate the patient for 35 minutes. The patient died at 9:08 p.m. Autopsy revealed a "massive" myocardial infarction. An estimated 50%-75% of the heart had been damaged. No pneumonia was noted at autopsy.

The ED physician (Dr. Snyder) and Dr. Bilyeu testified that they knew diabetics could have silent, or painless, heart attacks. However, neither felt that they had deviated from the customary standard of care. Dr. Snyder stated that if a physician suspected a cardiac problem, it would be a deviation from the normal standard of care not to order an ECG. Since neither suspected a cardiac problem, they did not believe an ECG was necessary. They admitted the decedent’s symptoms could be consistent with CHF. Dr. Bilyleu also believed that the patient’s condition was nonsurvivable even if a correct diagnosis had been made, because of the extent of damage to the heart.

A board-certified family practitioner testified as an expert witness for the plaintiff. He believed Dr. Snyder, Dr. Bilyeu, and Dr. Summer all deviated from the ordinary standard of care in their failure to obtain an ECG. The plaintiff expert believed that while some of the treatment ordered by Snyder was appropriate for a cardiac patient, other treatment could have been harmful. Also, there was an immediate need for a higher concentration of oxygen. The plaintiff’s expert testified the underlying problem with the heart was severe but not necessarily fatal, and he believed the patient had a "very good" chance of surviving if his condition had been correctly diagnosed and properly treated. The expert conceded that the patient "may have died anyway." He declined to say whether it was probable or reasonably likely that the patient would have survived with proper treatment.

A retired ED physician testified on behalf of Dr. Snyder. The expert testified Snyder met the ordinary standard of care in diagnosing and treating the patient. The expert did not believe the Sept. 19 attack was survivable, but he did not think the damage was irreversible on Sept. 18.


At trial, the jury’s verdict was for the defendant physicians. The plaintiff wanted the case remanded for retrial, since they believed the manifest weight of the evidence supported their claim. The appellate court would not reverse, since the defense expert testified the patient probably would have died even if the normal standard of practice had been followed. Even the plaintiff’s own expert testified the decedent had an excellent chance for survival, but he refused to say that the decedent probably would have survived.

Electrocardiography can be very helpful in identifying the etiology of dyspnea in patients. Myocardial ischemia is an important cause of painless dyspnea. Elderly patients and those with diabetes are likely to have atypical presentations of cardiac ischemia, especially shortness of breath.17 Patients with unexplained dyspnea and cardiac risk factors require ECGs as part of their routine exam.

Case #7: Arrhythmia — Delay in ECG, Monitoring

In Smith, et al v. State of Louisiana18, Mrs. Smith presented to the ED at the Huey P. Long Charity Hospital on Dec. 10, 1982, at which time she complained that she was experiencing shortness of breath. She was 58 years old, and was described on the ED admission form as an obese female in no acute distress. The nurse took Mrs. Smith’s vital signs, which revealed an elevated blood pressure of 180/110 mmHg. All other vital signs were within normal limits. The patient was examined by the physician on duty at the ED, Dr. Staudinger, between 7:30 and 8 p.m. Dr. Staudinger noted that Mrs. Smith was experiencing shortness of breath, and he also observed mild edema, or swelling, in her extremities. The doctor’s initial diagnosis was that Mrs. Smith was suffering from mild CHF. He prescribed 20 mg of Lasix (a diuretic designed to reduce blood pressure and increase urine output), a chest x-ray and an ECG. These orders were recorded on the patient’s chart at 8:05 P.M. The precise time that the x-ray was taken is not clear from the record. Dr. Staudinger testified that he reviewed the x-ray results at approximately 9:15 p.m. Those results were normal, and at that point the doctor felt that there was no need to hospitalize Mrs. Smith. The ECG was not performed until approximately 11:30 p.m.

In the interim, the nurse’s shift ended, and another nurse assumed care for the patient. The nurse testified that while making rounds between 11:30 and 11:45 p.m., he observed that Mrs. Smith was in distress. Upon closer examination, he determined that she had a faint pulse and was apneic. Believing that the patient had gone into cardiac arrest, he immediately summoned Dr. Staudinger. Dr. Staudinger testified that at the very moment that he received the distress call from the nurse, he was in the process of reviewing the results of Mrs. Smith’s ECG. Those results just had been transmitted to him, the test having been administered only a few minutes earlier. The ECG results showed that Mrs. Smith was experiencing atrial fibrillation, an irregular heart rhythm. The test results also showed that her heart rate had increased from 90 beats per minute (bpm) at the time of admission to 170 bpm. Cardiopulmonary resuscitation was performed for about 45 minutes. Mrs. Smith did not respond, and was pronounced dead at 12:37 a.m. on Dec. 11. Dr. Staudinger listed the cause of death as cardiac arrest, secondary to arrhythmia.

It is uncertain whether Mrs. Smith’s condition ever changed appreciably between the time that she initially was examined and that point in time just preceding the onset of the cardiac arrest discovered by the nurse about four hours later. There is no indication on her medical chart that her vital signs were ever re-checked during the period between her initial examination and the cardiac arrest. Mrs. Smith’s daughter testified that she was at her mother’s side throughout the evening and saw no one check her mother’s vital signs.

Dr. Staudinger also testified that if the ECG had been taken earlier and had yielded the same results (atrial fibrillation), he would have: 1) placed Mrs. Smith on a heart monitor; 2) placed her in the ICU; 3) prescribed an IV for medication "if she needed it" (the type of medication to be used was not specified); and 4) sought a medical consultation from another doctor in order to evaluate the atrial fibrillation.

Asked if the implementation of these procedures would have given him a "reasonable chance" of saving Mrs. Smith’s life, Dr. Staudinger answered "no." He went on to explain his view that, regardless of whether the cardiac arrest occurred in the ED or in the ICU, "I don’t believe it would have made any difference." Asked if he would have had a better chance of prolonging the patient’s life if the atrial fibrillation had been discovered earlier in the evening, he replied "It is possible that it may have . . . then it is also very possible that it wouldn’t have. . . ."


Cardiac arrhythmias such as atrial fibrillation can cause dyspnea by reducing cardiac output. There is no doubt in this case that the lack of cardiac monitoring, inadequate repeat vital signs, and failure to provide appropriate subsequent treatment did not fall within the standard of care. However, the more difficult issue of causation was not proven in this case. There was no evidence in the record to support a conclusion that if the defendants had monitored Mrs. Smith on a regular basis and administered the ECG at an earlier time, they would have discovered a condition that would have triggered more active management. The Louisiana Supreme court held that the plaintiffs need only show that the decedent had a chance of survival which was denied as a result of the defendant’s negligence. They do not have a burden of establishing that Mrs. Smith would have lived if she had received different treatment as the result of an earlier diagnosis. The Louisiana Supreme court upheld the result reached by the court of appeal, judgment in favor of defendants. The plaintiffs failed to establish that the defendants’ negligence denied the patient a chance of survival.

The case illustrates the need for timely diagnostic testing such as an ECG. The physician and nurse had a duty to recheck the patient and perform routine vital signs. These rechecks need to be documented in the chart. Patients who are placed on a monitor should have this documented in their chart. These aspects of care, no matter how routine, are essential elements of documentation. Documentation will provide the physician, nurse, and hospital a much stronger defense should litigation ensue.

Case #8: Viral Myocarditis

In Mr. Fehling v. Levitan,19 Mr. Fehling, age 33, became ill in April 1980. He went to see his physician, Dr. Levitan, on April 30, and complained of fever, cough, chills, and aching muscles. Dr. Levitan ordered a chest x-ray and prescribed an antibiotic to treat what he diagnosed as viral bronchitis. The chest x-ray was considered normal by the radiologist who interpreted it.

The next morning Mr. Fehling, went to the ED at Unity Hospital. He complained of shortness of breath. He was vomiting and had a rash. He was sweating heavily and was extremely apprehensive. His blood pressure readings in the ED were 78/0 mmHg and 50/0 mmHg. His pulse and respiration were rapid. Dr. Levitan saw Mr. Mr. Fehling and admitted him to the hospital, having diagnosed him with an allergic reaction to the antibiotic.

Mr. Fehling’s symptoms worsened during the day. The nursing staff called Dr. Cruz, a house physician for Unity Hospital, to evaluate Mr. Fehling. Cruz ordered an ECG, which showed a right bundle-branch block. Cruz ordered Mr. Fehling transferred to the coronary-care unit (CCU). Later that evening, Dr. Levitan transferred Mr. Fehling out of the CCU and back to the floor. A chest x-ray taken that day, in contrast to the normal x-ray the previous day, showed extensive infiltration of Mr. Fehling’s lungs. Dr. Levitan changed his diagnosis to viral bronchopneumonia.

The next day, May 2, Mr. Fehling continued to be acutely short of breath. Dr. Carlson, another Unity house physician, evaluated Mr. Fehling that night and asked the nursing staff to order a test for arterial blood gases. The nurses sought permission from Dr. Levitan, who refused the request. Dr. Levitan testified that he had ordered the test earlier, but canceled it because technicians were unable to obtain an arterial blood sample. Mr. Fehling, a weight lifter, had heavily muscled arms that made it difficult to reach the artery.

At about 8:30 a.m. on May 3, Mr. Fehling died. His parents testified that they repeatedly requested treatment for his worsening condition, but their pleas for help were ignored. They also testified that the efforts to resuscitate their son were haphazard. An autopsy performed that day showed that Mr. Fehling died of acute viral myocarditis and CHF.


The crucial issue at trial was whether Mr. Fehling would have survived the illness even if he had received the best possible medical care. The experts all agreed that there is no "cure" for viral myocarditis and that the only treatment is supportive care. The plaintiffs’ experts at trial testified that Mr. Fehling was seriously ill and going into shock when he presented to the ED on May 1. One expert testified that Dr. Levitan was negligent in failing to admit Mr. Fehling directly to the CCU, in failing to obtain the test for arterial blood gases, and in later removing Mr. Fehling from the CCU. Plaintiff’s experts testified that if treated properly, Mr. Fehling may have survived the myocarditis.

In contrast, the defense experts testified that the virus had damaged so much of Mr. Fehling’s heart by the time he sought treatment that there was virtually no chance he would have survived. The pathologist for Unity Hospital, who performed the autopsy, testified that 50% of Mr. Fehling’s heart muscle was dead, and Mr. Fehling could not have survived.

Myocarditis is an illness not frequently encountered by ED physicians. Not only is it difficult to diagnose, there is no definitive cure. Care is primarily supportive. Based upon the disease process itself, it is unlikely that Mr. Fehling would have survived, considering the extent of myocardial injury. Hypotension and dyspnea are an ominous combination. The initial diagnosis of an anaphylactic reaction in this case was probably a reasonable diagnosis. However, the fact that the chest x-ray findings changed so dramatically in 24 hours from "normal" to "extensive infiltrates" should have alerted the admitting physician that the patient’s condition was changing. The differential would include CHF, adult respiratory distress syndrome (ARDS), myocardial infarction, myocarditis, endocarditis, pericarditis, pneumonia, and sepsis.


Dyspnea can be the presenting complaint for numerous life-threatening conditions. Fortunately, the misdiagnosis in many cases is not, by itself, enough to cause physicians to lose lawsuits for professional negligence. The plaintiff must prove causation: that the correct diagnosis would have prevented the subsequent injury or death of the patient. In many of the cases that were discussed, the standard of care was not met by the physician or nurse; however, the breach of the standard of care did not affect patient outcome. PE and arrhythmias can be catastrophic, unpredictable, and unpreventable events. Even though the patients may have died regardless of the care given, patients whose care was not within the acceptable standard of care may be able to recover a percentage of their damages based on the theory of lost chance of survival.

Risk Management Tips

  • All patients with dyspnea need a pulse oximetry reading. (This only gives information about oxygenation, not ventilation.)
  • Review the vital signs! Patients who are tachypneic and tachycardic may be trying to tell the physician that they have a hidden diagnosis.
  • Place patients who complain of dyspnea on cardiac monitors, and document on the patients’ charts the time this was done.
  • The diagnosis of psychogenic dyspnea is one of exclusion. It should be reserved for the young and healthy individual with a previous history of similar attacks.
  • A previous complaint of dyspnea in a patient does not mean that the cause is the same. Patients with cardiac risk factors can present with ischemia, CHF, arrhythmias, and PE.
  • Painless dyspnea can be from cardiac ischemia or a PE: Don’t be fooled by a patient who does not complain of chest pain.
  • Read old charts, get old x-rays, and take time in a busy ED to tie up loose ends.
  • Do not rely on a normal pulse oximetry reading and a normal A-a gradient to determine the need for a V/Q scan or helical CT. If the clinical suspicion is high for PE, then order the test.
  • Heparin should be started immediately in patients in whom the clinical suspicion for PE is high. In all other patients, a risk benefit analysis should be done to determine if heparin therapy should be started before the diagnosis has been made by V/Q or helical CT.


1. Stapczynski JS. Respiratory Distress. In: Tintinalli, Emergency Medicine, A Comprehensive Study Guide, 5th ed. New York, New York City: McGraw-Hill; 2000:443.

2. Pratter MR, et al. Cause and evaluation of chronic dyspnea in a pulmonary disease clinic. Arch Intern Med 1989; 149:2,277-2,282.

3. Bickham v. Grant, no. 97-CA-01639-coa. (Court of appeals of Mississippi).

4. Susec O, et al. The clinical features of acute pulmonary embolism in ambulatory patients. Acad Emerg Med 1997; 4:891-897.

5. PIOPED Investigators. Value of the ventilation/perfusion scan in acute pulmonary embolism. JAMA 1990; 263(20): 2,753-2,759.

6. Kline J. Dyspnea: Fear, loathing, and physiology. Emerg Med Practice 1999; 1(3):9.

7. Goldberg SN, et al. Pulmonary embolism: Prediction of the usefulness of initial ventilation-perfusion scanning with chest radiographic findings. Radiology 1994; 193:801-805.

8. McCrery, et al. v. Knighton Medical Center, et al. 705 So. 2d 753 (1997).

9. Dumont v. Maaliki et al. 769 So. 2d 1230 (2000).

10. Stein PD, et al. Clinical characteristics of patients with acute pulmonary embolism. Am J Cardiol 1991; 68:1,723-1,724.

11. Id.

12. Logacz et al, v. Raymond Limansky, 84 Cal.Rptr. 2d 257 (1999).

13. Phico Ins. Co. v. Shirley, 467 N.E.2d 1045 (1984).

14. Pepe et al, v. Jayne et al, 761 F. Supp. 338 (1991).

15. Belmon, et al. v. St. Francis Carini Hospital, et al. 427 So. 2d 541 (1983).

16. Curry v. Summer, MD, et al. 136 Ill. App. 3d 468; 483 N.E.2d 711 (1985).

17. Madias JE, et al. Correlates and in-hospital outcome of painless presentation of acute myocardial infarction. J Investig Med 1995; 43(6):567-574.

18. Smith, et al v. State of Louisiana Through The Department Of Health And Human Resources Administration and Dr. Edward Staudinger, (Sup Ct of La.) 523 So. 2d 815 (1988).

19. Mr. Fehling v. Levitan, 382 N.W.2d 901 (1986).