Physician Legal Review & Commentary

Court awards $5 million against radiologist for failure to diagnose an impending stroke

By Jonathan D. Rubin, Esq.
Kaufman, Borgeest & Ryan
New York, NY

Heather Laschewer, Esq.
Kaufman Borgeest & Ryan
New York, NY

Leilani Kicklighter, RN, ARM, MBA, CHSP, CPHRM, LHRM
The Kicklighter Group
Tamarac, FL

News: A couple was awarded $5 million against a radiologist who failed to properly diagnose and prevent a stroke that resulted in brain damage. Plaintiff presented to the emergency department with complaints of a severe headache that lasted several days. A few hours later, she developed slurred speech, restlessness, giggling, paralysis to her right arm, and low blood pressure. She underwent a CT scan, which plaintiff's counsel alleged was misread. The plaintiff subsequently suffered a seizure and brain hemorrhage resulting in brain damage.

Background:On Aug. 9, 2007, the plaintiff, a 25-year-old female, presented to the emergency department at a 100-bed community-based hospital at approximately 8:30 a.m. with complaints of a severe headache that developed three days earlier. She also reported seeing occasional flashes of light. Over-the-counter medications did not provide any relief. She was initially treated at the hospital for a migraine. She was given intravenous fluids and pain medication. At approximately 11:30 a.m., she developed slurred speech, restlessness, giggling, paralysis to her right arm, and low blood pressure. At 12:20 p.m., a CT scan was ordered.

The defendant, who was a member of a radiology group under contract with the hospital's radiology department, reviewed the CT scan and gave the following diagnosis: "[T]there is no evidence of acute hemorrhage, mass lesion, mass effect, acute ischemia or extra axial fluid or collections." The defendant noticed that two veins in the plaintiff's brain were "mildly prominent," but reported that they were of "doubtful clinical significance."

At 5:35 p.m., the plaintiff suffered a seizure and hemorrhage. She was placed on a ventilator and transferred to a hospital in a large metropolitan area. A CT scan performed at that hospital revealed that the plaintiff had suffered intra-cranial hemorrhages. She underwent brain surgery. The plaintiff remained on a breathing machine for 11 days and was in a medically induced coma for a portion of the time. She remains partially paralyzed in her right arm and right hand. She developed epilepsy and suffers from seizures.

The plaintiff's counsel alleged that the CT scan showed significant abnormalities and if the CT scan had been properly read, the plaintiff could have been given heparin, a blood thinner, to prevent the stroke.

A jury found the radiologist negligent and awarded the plaintiff and her husband $5 million, which was the amount requested from the jury.

What this means to you: Here we have a 25-year-old married woman who suffered a significant lifelong neurological untoward outcome. By today's standards, she has the majority of her life ahead of her.

This patient presented to the emergency department with a headache of "several" days duration that initially was diagnosed as a migraine. However, we don't know the basis of this diagnosis and whether she had a history of migraines. If so, how were prior migraines treated, and what was the efficacy of that treatment? Had she been to a neurologist for the diagnosis and treatment of migraines if this were not the first episode? If so, was that neurologist called by the emergency department staff? Was any neurologist called to consult on this patient?

Many hospitals have created Stroke Centers of Excellence. Many such centers are accredited as stroke centers, meeting accrediting standards and medical practice standards. We do not know if this hospital was/is a Stroke Center of Excellence. However, there are accepted evidence-based standards of practice regarding treatment of suspected stroke in any setting.

The timeline is as follows: admission to the emergency department at 8:30 a.m. with changes in speech and sensorium, and weakness of her right arm at 11:30 a.m., three hours later. The CT was ordered 50 minutes later, but we do not know when the CT was read by the radiologist and if the radiologist who viewed the films was on site. We don't know if the film was ordered stat, when it was finally read, or when the results were conveyed to the treating physician. To whom and when were the results of the CT scan conveyed? Was the reading of this CT scan considered critical laboratory/test results and conveyed in that manner? Did the radiologist contact the patient's physician directly or just send the preliminary report to the emergency department? Was the radiologist made aware of the patient's significant neurological changes as the clinical indication for the CT scan and to convey the significance of the situation? Only the chart documentation and a detailed timeline would provide us with some of this critical information.

At this point, we don't know if a neurologist had been called in to consult and if the patient had been admitted or was still in the emergency department. If a neurologist was not called to consult, then why not? What are the standards in this facility regarding when to call in a neurologist or neurosurgeon? If she were still in the emergency department, how often and by whom was she being monitored? Emergency departments are not intended nor are they staffed to monitor patients to the extent patients are monitored in an intensive care unit or an inpatient nursing unit.

The time between when the CT scan was ordered and the patient suffered a seizure and hemorrhage and put on a ventilator was 5 hours and 15 minutes, at which time she was transferred to a hospital in a large metropolitan area. Again, this raises the question of when the CT scan was read, when were the results conveyed, and to whom? We still don't know if and when a neurologist or neurosurgeon was called or if called when he/she came to the emergency department. Another CT scan was done at the subsequent hospital that showed an intra-cranial hemorrhage. When compared to the films taken at the first hospital, significant abnormalities were evident.

When a situation such as this one arises, the risk manager at the first hospital should conduct a detailed investigation into the timeline and facts of this patient's stay before transfer to the city hospital. The risk manager, on behalf of the hospital, should notify the hospital liability insurance carrier. The doctors involved should notify their individual carriers. The radiologist was part of the radiology group contracted with the hospital to provide radiology services. The risk manager should review the contract to determine whether the radiologist in this matter acted in concert with the terms of the contract.

Does this hospital have a quality control program in the radiology department that entails rereads of an established sample of different types of tests and reads by different radiologists throughout the year, the re-reads done by a different radiologist than the original reading radiologist? Where are those studies reported? Does the risk manager involved have input into trends or patterns of differences in readings? This particular case should be sent for medical peer review. Is this a part of the contract?

This unfortunate adverse untoward outcome meets The Joint Commission standard for a disclosure meeting. More than 25 states have statutes requiring disclosure of adverse events, in addition to The Joint Commission standard. Physicians and risk managers should be familiar with their state's statutes regarding disclosure and apology. In this situation the risk manager should facilitate a root cause analysis into this situation. In addition, the risk manager should facilitate a disclosure meeting with this patient's husband, the physician's involved, and nurses.

The risk manager should facilitate a collaborative review of the protocol for dealing with sustained headaches, including neuroradiology, emergency department physicians, neurologists, and neurosurgeons with a focus on validating or modifying the current practice protocol.


Rockingham County (NH) Superior Court. Civil Action No. 218-2010-CV-00670.