Failure to Diagnose Stroke Claims Have These Fact Patterns
Patients don’t fit typical profile
Failure to diagnose ischemic stroke is a common allegation in claims against emergency physicians (EPs) — even in emergency departments (EDs) at Primary Stroke Centers, according to Gary Mims, JD, a partner at Sickels, Frei and Mims in Fairfax, VA.
"I appreciate the demands on the ED doctor. But I am just one lawyer and I have seen a number of missed stroke cases in a major metropolitan area over a rather short period of time," he reports. Many of the plaintiffs were young and in good health.
"While these patients appear to be the least likely stroke victims, they are also the most likely to respond to timely intervention," Mims says.
With a young, healthy patient, it is statistically unlikely that stroke is the cause of symptoms of vomiting, headache, and vertigo, he acknowledges. "I would imagine that 95% of the time, stroke is not the cause, and that the ED doctor who doesn’t consider stroke will most likely be right," says Mims. "But the consequences to that small percentage that have stroke is often catastrophic."
Scott T. Heller, Esq., an attorney with Reiseman, Rosenberg, Jacobs & Heller in Morris Plains, NJ, is currently defending a case in which the codefendant EP apparently failed to recognize signs and symptoms of a basilar artery stroke in a 34-year-old male.
The patient underwent dental work, returned to his office, and was later found disoriented in the bathroom. "He was taken to the ED within one hour of symptom onset, well within the three-hour window for tPA, if the ER doctor had recognized a possible stroke and triggered the stroke protocol," says Heller.
The EP apparently attributed the patient’s slurred speech at presentation to numbness of his lips from dental anesthesia. "The patient’s youth and relatively low risk for stroke were also factors in the ER physician’s thought process," says Heller.
It also appears the EP did not become concerned when the patient became unable to find words, and experienced decreasing strength in his arms and legs. "Clearly, those worrisome findings were suggestive of a stroke and were not attributable to dental anesthesia," says Heller.
By the time the EP called a neurologist, it had been more than 4.5 hours since the onset of symptoms, so the patient was no longer a candidate for intravenous tissue plasminogen activator (tPA). He was then transferred to another facility, where a neurosurgeon attempted intraarterial tPA about eight hours after the onset of symptoms.
Unfortunately, there was an extravasation into the brain parenchyma. Therefore, the procedure was stopped, as the neurosurgeon thought it was unsafe to attempt to remove the clot. "This has left the now 37-year-old patient in a locked in’ syndrome," says Heller. "His only means of communication is through his wife’s interpretation of eye signals, and recent use of a computer keyboard which he activates by fixing his eye gaze on specific keys."
Heller says the "take home lesson" for EPs is that any patient who presents with stroke-like symptoms is presumed to be a stroke patient until proven otherwise. In this case, the EP was initially misled by the patient’s youth and low risk factors for a stroke.
"He was at low risk, but not at zero risk," says Heller. "This potentially life-threatening condition needed to be ruled in or out in a timely fashion while the optimal treatment was still an option."
In addition, the EP failed to monitor the patient and recognize the patient’s worsening condition. "That deterioration was probably the sign which should have alerted the ER physician that a more ominous event was occurring, which required immediate workup and intervention within the window for the optimal treatment of IV tPA," says Heller.
The EP testified in his deposition that he suspected stroke immediately upon the patient’s arrival and called consultants. "However, his testimony is contradicted by several consultants who can prove they were not contacted by the EP until over 4.5 hours after the onset of symptoms," says Heller. Here are some other common fact patterns in "missed stroke" claims against EPs:
• When the CT scan came back negative, the EP assumed the diagnosis was benign.
This is probably because the patient did not fit their typical profile of a stroke victim, says Mims. "CT is of little or no help in diagnosing an acute ischemic stroke," he adds. "On standard of care, these cases are difficult to defend."
• Plaintiffs had subtle symptoms that mimicked symptoms of a more benign process, such as concussion, dehydration, or benign positional vertigo.
"Cases are easiest to defend when the ED doctor documents his or her suspicion of stroke, and his or her reason for ruling it out," says Mims.
In one case, the EP considered stroke, though this was not documented, ordered a CT scan, and documented a diagnosis of "vertigo."
"The patient was discharged, only to be brought back hours later with a full-blown stroke," says Mims. The EP testified that she thought the condition was due to benign positional vertigo, but never performed a simple positional maneuver that might rule out the diagnosis. "She tried to defend this by arguing that the maneuver might cause discomfort, which, of course, is the intention of the maneuver," says Mims.
• An accurate and complete history was not taken, and the EP failed to appreciate that the patient’s symptoms were of sudden onset.
For example, a head injury might cause a concussion, and that might result in headache, vomiting, and vertigo. However, if the injury occurred without symptoms, and two hours later the patient has sudden onset of headache, nausea, vomiting, and vertigo, the diagnosis of concussion is less likely.
"It must be recognized that head or neck trauma, or sudden movement of the head — whiplash, for example — should raise the suspicion of stroke in those patients that don’t fit the typical stroke profile," says Mims.
• EPs failed to activate the stroke team without delay.
The ED’s objective at Primary Stroke Centers is to administer tPA to eligible patients within one hour of arrival. "Yet many ED doctors seem to want to reach a definitive diagnosis before activating the stroke team — with valuable time lost," says Mims.
Mims has heard EPs testify that they didn’t want to waste resources by activating the stroke team when stroke is not present. "Which question would you rather answer — why you called the stroke team when there wasn’t a stroke, or why you discharged a patient with early signs of stroke who was still eligible for effective therapy?" he asks.
• The EP failed to include stroke on the differential for patients with sudden onset of neurological deficits.
If the EP considers stroke, orders a timely CT, and calls for a timely neurological consult, "the ED doctor will have a much more defensible case," says Mims.
Sources
For more information, contact:
- Scott T. Heller, Esq., Reiseman, Rosenberg, Jacobs & Heller, Morris Plains, NJ. Phone: (973) 206-2500. Fax: (973) 206-2501. E-mail: [email protected].
- Gary Mims, JD, Sickels, Frei and Mims, Fairfax, VA. Phone: (703) 925-0500. Fax: (703) 925-0501. E-mail: [email protected].
