Physician Legal Review & Commentary:
16-year-old male awarded $450,000 for failure to diagnose appendicitis 6 days later, primary care doctor finds infection
By Jonathan Rubin, Esq.
Partner
Kaufman Borgeest & Ryan New York, NY Aisling Jumper, Esq.
Associate
Kaufman Borgeest & Ryan New York, NY Bruce Cohn, JD, MPH
Vice President
Risk Management & Legal Affairs Winthrop-University Hospital Mineola, NY
Financial Disclosure: Co-Authors Jonathan D. Rubin, Esq., Aisling Jumper, Bruce Cohn and Executive Editor Joy Dickinson report no consultant, stockholder, speaker's bureau, research, or other financial relationships with companies having ties to this field of study.
News: A 16-year-old male was awarded $450,000 for his doctor's failure to diagnose appendicitis before the appendix ruptured. The patient presented at the hospital with pain in his abdomen. Blood tests and X-rays failed to indicate appendicitis, and the patient was sent home. Six days later, the patient was examined by his primary care physician, and blood tests indicated that an infection was present. The patient was directed to the hospital, where it was determined that his appendix had ruptured and he was suffering from sepsis.
Background: Patient was a 16-year-old male who presented with abdominal pain at the hospital. After conducting blood tests, the hospital doctor determined that his pain arose from constipation, and she prescribed an enema and laxatives. The doctor advised that if the pain continued, the patient should be examined by his primary care physician. Six days later, the patient continued to suffer abdomen pain and went to his primary care physician. His primary care physician conducted blood tests and a CT scan. The blood tests indicated that the patient was suffering from an infection, and the patient was directed to the hospital. At the hospital it was determined that his appendix had ruptured and he was suffering from sepsis.
The patient's mother sued the hospital doctor. She argued that her son was suffering from appendicitis when he originally was examined and that the doctor had failed to diagnose his condition. The plaintiff further alleged that the doctor's failure to diagnose constituted medical malpractice. She said the doctor had failed to recognize the significance of the blood tests, which suggested elevated levels of leukocytes and neutrophil. Plaintiff's expert opined that the hospital doctor should have performed a CT, which would have revealed that the plaintiff was suffering from appendicitis. Plaintiff's expert also said that the X-rays did not demonstrate an intestinal blockage and, therefore, did not support a diagnosis of constipation.
Defendant argued that she had properly treated the patient. She said that he was not suffering from appendicitis on the day she examined him, because the abdomen pain was in the wrong area and blood tests did not indicate appendicitis. The defense expert opined that the patient's leukocyte was not high enough to be concerning. That expert said that the pain was not related to appendicitis because the appendix typically will burst 24 to 48 hours after developing appendicitis, and the patient's appendix did not burst until six days later.
The jury found that the hospital doctor had departed from the accepted standard of medical care. The jury awarded the plaintiff $450,000: $200,000 for past pain and suffering and $250,000 for future pain and suffering.
What this means to you: This relates a common scenario, a misdiagnosis or failure to arrive at a diagnosis in an emergency department, which highlights the difficulties experienced by physicians in emergency department encounters. Abdominal pain is a common and sometimes vexing diagnosis that can be simple epigastric distress from overeating or a significant condition such as appendicitis. The emergency department physician in this case did blood work, performed an examination, and diagnosed constipation. The patient was treated for this condition and properly advised to see their primary physician if the pain continued.
Some six days later, the patient's primary physician conducted additional blood tests and ordered a CT scan, which ultimately made the diagnosis of perforated appendix and sepsis. The plaintiff's expert with the benefit of 20-20 hindsight opined that the blood test results were suggestive of an infection, but it appears that they were not that clear, as often is true of lab results. Our physician colleagues often cite a maxim from medical school or residency about treating the patient, not the lab results.
Plaintiff's expert also declared that the emergency department physician should have performed a CT scan that would have revealed the diagnosis. A CT scan of the abdomen with contrast is said to be highly specific for the diagnosis of appendicitis. A CT scan also produces radiation, and a significant amount of it directed at the body of a 16-year-old. The medical and lay presses are filled with articles about the overuse of radiological tests and the resultant exposure to radiation after being subjected to multiple tests. There is also the reality of the time, effort, and resources of CT scans and other advanced testing. Physicians make educated assessments based on the information then available and, based on their differential diagnoses, decide to scan or not. It would simply not be possible in a busy emergency department for every patient with a pain in the head, chest, or abdomen to receive a CT scan.
Our physician and her experts in this case took the position that the leukocytosis was not high enough to be concerning and that burst appendix generally will show itself in 24-48 hours, not six days, a seemingly reasonable statement. Unfortunately what might appear reasonable to a trained physician might not seem reasonable to members of a lay jury. The argument that the pain was "in the wrong area for appendicitis" is difficult to sell when the patient ultimately was diagnosed with that malady. The timing element has scientific merit. Perhaps the teen-ager did not have appendicitis upon the emergency department presentation, perhaps this case was an unusual one, or perhaps the appendix burst earlier than six days after the emergency department visit. Members of the jury viewing a case such as this one start out with the knowledge that the patient ultimately did have appendicitis. They, too, have the benefit of hindsight, and they typically find it difficult to reconcile the facts with the physician's thought process.
What this means to you is, essentially, some cases are difficult to defend for reasons that might not relate directly to the medicine. Most emergency department physicians with substantial experience will be able to relate cases such as this one over their careers. Sometimes the differential or final diagnosis that appeared reasonable at the time might turn out to be wrong. Unlike the doctor at the time of the encounter, the jury knows how the story turned out, and it simply might not be possible to dissuade them from believing the doctor should have made the diagnosis. It is tempting to blame the child or the parents by questioning why it took them six days to meet with another doctor.
Regardless, this case is one of those situations in which nothing was done wrong, but solely the outcome will dictate the result of the litigation.
Reference
Case No. 350597/08, Supreme Court of New York, Bronx County, NY.
