Legal Review & Commentary

Failure to diagnose vitamin deficiency leads to nerve damage: A $1.73 million verdict

By Jan J. Gorrie, Esq., and Blake Delaney, Summer Associate
Buchanan Ingersoll PC
Tampa, FL

News: A woman complaining of tingling in her extremities visited a neurologist. Suspecting a vitamin deficiency, the physician admitted the woman to the hospital and ordered blood work to test her vitamin B12 levels. The doctor also discussed the patient’s condition with a fellow neurologist, who concluded she suffered from radiation damage, depression, and emotional distress. When the first neurologist received the blood work results showing low vitamin B12 levels, he failed to follow up with the patient or notify her of the findings. The woman’s condition went undiagnosed for an additional month. After suffering a degeneration of sensory nerves in her spinal cord, damage to her brain and peripheral nerves, and a loss of proprioception, the woman filed suit for medical malpractice.

A jury awarded the plaintiff a $1.73 million verdict against the first neurologist, but it rendered a defense verdict in favor of the second neurologist. The plaintiff settled with the hospital for $50,000 prior to trial.

Background: A 58-year-old woman visited a series of internists and physiatrists after experiencing a worsening of tingling in her hands and feet. After none of those physicians could diagnose her condition, the woman visited a neurologist. He discovered that the sensations stemmed from nerve damage in the woman’s feet and legs that had been caused by cervical cancer treatments six years before. The neurologist, suspecting a vitamin B12 deficiency, admitted the woman to a local hospital and remained as her attending physician.

At the hospital, the neurologist ordered blood work to test his patient’s vitamin B12 levels. Because the hospital could not perform the test on site, the blood sample was forwarded to a laboratory in California. While awaiting the test results, the neurologist consulted a colleague at the hospital for a second opinion.

The second neurologist noted that the patient’s prior chemotherapy may have caused radiation damage to the nerves running from her brain and spinal cord to the rest of her body. He ordered a somatosensory evoked potentials (SSEP) test to evaluate the woman’s nerve pathway from the peripheral nerve in her arms and legs through her spine to her brain. The SSEP test results were consistent with radiation damage, but the second neurologist never documented a possible vitamin B12 deficiency in his consultation or SSEP report.

The second neurologist further observed that the woman was experiencing hysterical emotional/physiological symptoms due to underlying and untreated depression, and that she suffered from mild physical changes magnified by emotional stress. He recommended the patient be transferred to a rehabilitation center for a psychiatric consult and rehabilitation physical therapy. At the rehabilitation center, the patient was diagnosed as having acute anxiety.

Thereafter, the first neurologist received the results from the blood work showing low vitamin B12 levels. However, the neurologist never followed up with the results or notified the patient. Her vitamin B12 deficiency went undiagnosed for an additional month, and she became largely confined to a wheelchair, able to walk slowly only with the aid of a walker.

The woman filed a lawsuit against both neurologists and the hospital alleging professional negligence. Relying on the testimony of four expert witnesses specializing in neurology, internal medicine, medical oncology, and physical medicine, she claimed that the delay in diagnosing her vitamin deficiency directly caused subacute combined degeneration of the spinal cord, a rare progressive disorder producing weakness, abnormal reflexes, clumsiness, and tingling due to the degeneration of sensory nerves in her spinal cord and damage to her brain and peripheral nerves.

The plaintiff also maintained that the defendants’ negligence resulted in her loss of proprioception, the ability to sense the position, location, orientation, and movement of the body and its parts.

The first neurologist admitted negligence, but argued that the woman’s neurological condition and difficulty in walking would not have been reversible even had he timely diagnosed her condition.

The jury awarded damages for loss of normal life, pain and suffering, necessary help and capital expenses, and medical expenses totaling $1.73 million. However, the jury rendered a defense verdict for the second neurologist. The hospital settled with the plaintiff for $50,000 prior to jury selection for trial.

What this means to you: This case primarily deals with the issues of delay in diagnosis and delay in informing the patient of test results and the appropriate diagnosis. Communication with patients is critical and, if not handled properly, can be disastrous.

"It appears from the fact pattern that the patient had not been involved in the discussion or decision making regarding the blood sample and test for vitamin B12 deficiency," says Stephen Trosty, JD, MHA, CPHRM, director of CME and risk management for American Physicians in East Lansing, MI, "and if that is the case, then the first neurologist made a serious mistake and might have breached the standard of care relative to informed consent.

"While the blood work was not a procedure or surgery, it was something that dealt directly with the potential diagnosis and had a significant effect on the patient . . . and she, therefore, should have been informed of the test and the reason for it. The patient also should have been told when the test results were expected and that she would be told the results, regardless of what they are. Had the physician done this, the patient would have been a participant in the decision regarding the test, would have known how long it would take to get the results back, and would have had an idea of when to check with the physician if she did not hear from him with the results. This might have reduced her anger and frustration and might have resulted in her contacting the physician to get the results when she did not hear from him.

"By making the patient a partner in decision making, including tests, and letting them know when to expect the results, there is an excellent chance that the patient will contact the physician for the results if the physician forgets to call the patient, overlooks making the call, or does not receive the test results," Trosty adds. "This can serve as a form of second chance for the physician relative to getting test results to patients in a timely manner. This is especially true if the patient is told that the test results might enable the physician to make a diagnosis of what is wrong with the patient and can affect the course of treatment. This will provide even greater incentive for the patient to contact the physician if she does not hear from him within the expected timeframe."

Physicians have to recognize that it is their legal responsibility not only to diagnose a patient’s injury/illness but also to share that information with the patient and to take appropriate medical action, all within a reasonable period of time.

"Physicians and hospitals must have an adequate system for tracking all tests that are ordered, ensuring that test results are returned and seen by the physician, that the test results are shared with the patient, and any necessary or recommended follow-up is discussed with the patient. Many claims of failure to diagnose occur because this type of tracking system does not exist, is not comprehensive (does not contain all of the necessary elements), or is not adhered to. Nothing indicates that the hospital took measures to reach out to the patient, which probably contributed to their decision to settle prior to the selection of the jury," notes Trosty.

"The hospital’s culpability was likely strengthened by the fact that the test blood sample had to be forwarded to a lab in California, due to the fact that the hospital could not perform the test on site. While the first physician should have made sure that adequate documentation existed in the medical record regarding notification of the test results to the patient’s existing and subsequent providers, the hospital, as the initial recipient of those results, also bore some responsibility for communicating the outcome.

"Furthermore, the medical record documentation should have been adequate to alert the rehabilitation center physician that he (the first neurologist) suspected a possible diagnosis of vitamin B12 deficiency and a blood sample had been drawn and sent to the California lab for testing and a determination. This should have resulted in the rehabilitation center physician being notified of the results and/or alerted him to the necessity of checking back with the physician or the hospital to obtain a copy of the test results. In effect, it could have served as a form of quality control to ensure that the test results and diagnosis were shared with the patient and the subsequent treating provider," observes Trosty.

The first neurologist’s failure to communicate with the patient after he received the results of the blood test and was able to make a definitive diagnosis resulted in a failure to initiate appropriate and timely medical intervention.

"The physician waited at least one month following receipt of the test results before notifying the patient, thereby unnecessarily delaying the correct diagnosis, as well as delaying the required treatment with vitamin B12" observes Trosty.

As the admitting and attending physician during the patient’s hospital stay, the first neurologist had primary responsibility for the treatment of the patient and the diagnosis of her condition.

"By calling in a second neurologist on a consult, he does not give up his primary responsibility for the care and treatment for the patient, and any transfer of the patient to the rehabilitation center should only have occurred with his consent. He remained responsible for notifying the patient, and any subsequent treating physicians, of the test results and recommended treatment. A requested consultation or referral by a physician requires that the referring physician provide all necessary information to the consulting physician. The first physician is expected to obtain a report back from the consulting physician and to ensure that appropriate follow-up has occurred with the patient.

"The two physicians should decide who would take responsibility both for notifying the patient of the results of the consultation and blood test, and for any necessary follow-up. However, a physician who orders tests for a patient is responsible for obtaining the test results, as well as for notifying and following up with the patient," adds Trosty.

While the first neurologist had an obligation to notify the patient as soon as the results came back, and to have her begin receiving vitamin B12 he also had an obligation to notify the second neurologist (the one he called in on a consult) of the results of the test so that he too would know the correct diagnosis and could help ensure that the patient began receiving vitamin B12.

"However, the second neurologist appears to have been responsible for the patient’s transfer to the rehabilitation center for a psychiatric consult and rehab physical therapy," notes Trosty, "and so he had an obligation to share the results with the providers at the rehabilitation center. He also is the physician who failed to even mention a possible vitamin B12 deficiency either in his consultation or SSEP report. It appears that the second neurologist completely missed the correct diagnosis and did not even consider it as an option or as something to be ruled out. He should have been informed of the correct diagnosis by the first neurologist, and should have assisted in obtaining timely required treatment for the patient.

"It is interesting that the jury rendered a defense verdict for the second neurologist. I think he was fortunate since I believe he might have deviated from the standard of care by not recognizing or documenting a possible vitamin B12 deficiency in his consultation or SSEP report. It would appear that he never considered this as a possibility even though he had been called in on a consult by the first neurologist who had ordered a test of the patient for a possible vitamin B12 deficiency. The second neurologist provided no information to the rehabilitation center of this possibility, and did not let them know that the first neurologist had ordered the test.

"I think it could be argued that his lack of attention to this possibility, as well as his lack of any related documentation, represented a deviation from the standard of care. Obviously the jury did not agree. However, I think that reinforces the fact that you can never be sure of how a jury will decide and the potentially mercurial nature of jury trials," notes Trosty.

"Diagnostic delays [composed of both diagnostic errors and failure to diagnose] represented approximately 39% of all medical malpractice claims against physicians in 2003 according to data from the Physician Insurers Association of America [PIAA]. The PIAA data has been fairly consistent for the years 1996-2003 for percentage of closed claims related to diagnostic delays. In fact, the top cause of malpractice claims against physicians during this period was Failure to Diagnose’ with approximately 31% of claims. The No. 3 cause of claims during this period of time was Error in Diagnosis’ with approximately 8% of claims. Both of these allegations are related to delays in diagnosis and resulting injury to patients," states Trosty.

"It is interesting to note that approximately 27% of failure-to-diagnose claims result in indemnity payment to the plaintiff according to PIAA data. The PIAA database consists of over 250,000 closed claims and represents physician claims from 1986-present. In addition, failure-to-diagnose claims represent a significant allegation/cause of claims for almost every medical and surgical specialty. The frequency of these claims appears to be increasing annually and so do the indemnity payments. Between 1985 and 2003, there was an approximately 268% increase in indemnity payments for failure-to-diagnose claims. It is important to note that these claims often result from a system or process failure, especially related to either inadequate or non-existent tracking and follow-up systems for test results, referrals and consultations, and patient notification.

"Unfortunately, failure-to-diagnose claims often result in high severity of patient injury. Recent PIAA data indicated that approximately 30% of these claims resulted in the death of the patient, 7% resulted in grave injury to the patient, and 32% resulted in some form of permanent injury," Trosty says.

Reference

DuPage County (IL) Circuit Court, Case No. 00L-546.