Legal Review & Commentary

Failure to diagnose osteomyelitis, thoracic para-spinal abscess: $800,000 Arizona verdict

By Jan Gorrie, Esq., and Mark K. Delegal, Esq.
Pennington, Moore, Wilkinson, Bell & Dunbar, PA
Tampa, FL

News: A man tried for several weeks to have his severe back pain addressed. Despite several visits to two different emergency departments (EDs), a visit with his family physician, and several referral physician visits, osteomyelitis and thoracic para-spinal abscess went undetected, resulting in residual neurological damage. After several physicians settled with the patient, the jury returned a $800,000 verdict against the hospital where he first sought care.

Background: The patient was a disabled 41-year-old with a previous history of recreational drug use. He went to an ED with complaints of thoracic back pain with radiating pain into the upper abdomen. He was seen by an emergency medicine specialist, who completed a full physical examination and ordered blood work. The blood work was done on a Coulter STKS lab machine which, according to calibration and test results, performed automated blood test results with 99% accuracy. The laboratory report indicated the plaintiff had a total white blood cell count of 10,700, which is within the normal range. But the band results were so far out of the normal range that the device flagged the results, indicating that a manual differential should be performed. The manual differential confirmed abnormal bands of 26%; the normal range is 0%-8%.

The test results led the emergency medicine specialist to a diagnosis of gallbladder disease. He prescribed antibiotics and pain medication. Before being discharged from the ED, the ED physician said he called the plaintiff’s primary care family physician with the test results and made an appointment for the patient.

The patient returned to the ED the next day complaining of nausea. He was seen by different emergency medicine specialists. When the patient said he had been diagnosed with gallbladder disease, the ED physician told him to see his family physician. The ED physician contacted the family practitioner’s office and shared a brief medical history that included the lower back pain and the gallbladder disease diagnosis. The patient was given an appointment for one week later. The patient’s mother attested that later that day, she had contacted the family physician but was told that he was out of the office.

Two days prior to his appointment with his family physician, the patient revisited the ED and was seen again by the emergency medicine specialist he originally encountered. A repeat of the blood work studies was ordered, and the results indicated a total white blood count of 11,000 with no bands. The ED physician charted that the patient’s infection had resolved. He again instructed the patient to follow up with his family practitioner and continue taking the pain medication. The lab device once again flagged the patient’s results as needing to be verified manually. This was not brought to the physician’s attention, nor was the manual differentiation performed.

The next day, the patient went to another hospital’s ED with complaints of intense pain. He was seen by an emergency medicine specialist who charted his history as radiating abdominal pain and thoracic back pain at T-7 and T-8. The patient was instructed to see his family physician. The physician assistant (PA) had the medical records from both hospitals faxed to the office for her review, but neither contained the information regarding the abnormal blood work band differential. She made an appointment for the patient to see a general surgeon.

The patient went to the general surgeon for evaluation. The surgeon tried unsuccessfully to reach the family practitioner. The patient returned to the family practitioner’s office and was referred to a diagnostic radiologist, whose X-rays revealed evidence of osteoarthritis. The patient returned to the second hospital’s ED, whose physician failed to reach the patient’s family practitioner, so he was referred to an orthopedist.

The next morning, the man was unable to move his feet and legs. He was transported to the second hospital’s ED and was seen by a neurosurgeon, who ordered an MRI. The MRI showed a para-spinal abscess from T-4 to T-11, as well as the presence of osteomyelitis at the T-7 vertebrae, which was almost destroyed as was a portion of the T-8 vertebrae.

Surgery to debride the infection was performed, as was a rib graft to stabilize the patient’s spine. Three days later, the patient had recovered some physical function, but he was left with some loss of bowel and bladder control, as well as sexual dysfunction, from the paraparesis. He was diagnosed with osteomyelitis and thoracic para-spinal abscess.

The patient brought suit against all of the treating physicians and the first hospital. The plaintiff alleged that, given the sequence of events and his medical history, the general practitioner should have ordered a STAT MRI and an orthopedic consult.

The plaintiff discovered that the lab technician at the first hospital had been reprimanded in the past for his failure to adequately perform tests, and that his failure to follow up or report the need to conduct additional manual differentiation procedure fell below the standard of care. The hospital admitted negligence, but denied causation. The plaintiff maintained that if surgery had been performed sooner, he might have made a complete recovery without residual neurological limitations.

The defendant general practitioner successfully denied negligence, arguing that it was reasonable to suspect that the plaintiff had gallbladder disease, and that his physician assistant’s referral to a general surgeon was appropriate. Further, he maintained that the referral to the surgeon led to the referral to the radiologist, which eventually led to the orthopedic surgeon. The family physician also testified that had he known of the earlier laboratory testing error, he would have checked to see if the patient had a back infection.

Prior to trial, the family practitioner’s PA settled for an undisclosed amount, as did several other physicians. In addition to the family practitioner, the jury found the emergency physicians and radiologist with 0% fault. The hospital’s case failed, and the plaintiff was awarded $800,000 in compensatory damages.

What this means to you: Medical negligence cases involving technical, nonhealth care practitioner oversight may be categorized as "systems errors" claims. This may include misfiling test results and losing X-rays. When the systems error can be linked to the patient’s prevailing ailment, the seemingly simple oversight can become a significant liability. In this instance, the lab technician’s failure to double-check a diagnostic test result as clearly indicated — the systems error — led to a finding of negligence against the hospital.

"It is clear that the jury tied the delay in diagnosis to the patient’s ultimate condition, holding the hospital liable for the lab technician’s negligence in failing to perform the noted manual differential. But for the systems error, the jury no doubt believed that the treating and referral physicians would have arrived at the correct diagnosis sooner and initiated treatment that would have avoided further injury to the patient. In addition, the fact that the lab technician had previously been reprimanded for similar conduct certainly did not help the hospital’s case," says Cliff Rapp, vice president of risk management, Florida Physicians Insurance Co. in Jacksonville.

"While the lab technician’s conduct seemed to be the essence of the case against the hospital, the systems error facilitated a defense for a number of others, which may explain why the jury did not find against the emergency room physicians or the patient’s general practitioner. Moreover, the patient’s presenting complaints were essentially subjective that being general pain, but which included abdominal pain that actually supported the working diagnosis/ suspicions of gallbladder disease. I suspect 7that liability would have been more widely apportioned had the patient’s complaints not included abdominal pain, because the error in diagnosis might have been more apparent," adds Rapp.

"A lack of communication among the health care providers, which in part may have been aided by the patient seeking the care of multiple providers in multiple settings, appears to have fueled the systems error as well as the delay in getting an earlier MRI. The systems error seems to have had a trickle effect, since with each successive hospital ED and physician office visit, the patient shared the misdiagnosis of gallbladder disease. Although the patient’s fragmented approach to seeking care may have contributed to his lack of getting relief through these various venues, it may also have made him seem more sympathetic to the jury and justified his actions given the lack of relief he experienced," he states.

"Because the patient’s profile seems to fit that of a constant complainer — a young, disabled, former recreational drug user, who was always accompanied by his mother, some of the practitioners may have dismissed some of his complaints. However, the need for an MRI clearly seemed apparent when the patient was seen at the time of his fourth emergency room visit [and certainly again when seen by the PA, which probably lead to her settling prior to trial]. No doubt, had the MRI been performed sooner, it would have lead to an earlier diagnosis and presumably better recovery. In light of almost-complete T-7 and T-8 vertebral destruction found at the time of diagnosis, causation facilitated the patient’s case," adds Rapp.

"Cases entailing systems errors are hard to defeat particularly with a sympathetic plaintiff and an arguably clear causal link between the delay the error seems to have generated and the patient’s ultimate outcome," he concludes.


Zavala v. Galen of Arizona d/b/a Columbia Paradise Valley Hospital and Belden, DO, Maricopa County (AZ) Superior Court, Case No. CV-98-16534 TUC 8WDB.