Legal Review and Commentary: Failure to diagnose, treat endocarditis in a timely manner: Confidential Florida settlement

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

News: A primary care physician referred a young woman to a cardiologist for an echocardiogram. A follow-up transesophageal echocardiogram was canceled when the patient found she was pregnant. She was admitted to a hospital three times during her pregnancy. Blood was detected in her urine the first time, and her physicians suspected kidney stones. The second time, she was diagnosed with a splenic artery aneurysm, which was successfully operated on with no harm to the unborn child. The third time, she was admitted with a high fever. An emergency cesarean section was performed and the child was born without complications. However, the mother died several days later as the result of an embolic cerebral infarct and resulting hemorrhage.

Background: In January 1994, the young woman was diagnosed with a heart murmur. She also had a history of fatigue and severe chills following workouts and would often develop a rash on her face following intense physical activity. Her primary care physician, an internist, ordered a complete blood count and echocardiogram. The cardiologist who performed her echocardiogram interpreted the results as a mitral valve prolapse with regurgitation and a possible vegetative lesion on the mitral valve.

To affirm these findings, the cardiologist suggested to the internist that his partner perform a transesophageal echocardiogram. The follow-up was canceled when the patient became pregnant.

When the woman entered her second trimester of pregnancy in May of 1994, she had a follow-up with the cardiologist. Again, the cardiologist diagnosed her as having a mitral valve prolapse with regurgitation and probable myxomatous degeneration. The cardiologist recommended the patient be placed on subacute bacterial endocarditis prophylaxis if she were to undergo any dental treatments during the pregnancy and at the time of delivery. He also instructed her to follow-up with him four to five months prior to her delivery.

In early June, blood was found in her urine and she was admitted to a hospital. Kidney stones were suspected as the cause, but diagnostic testing ruled them out. She did, however, have pneumonia. She was discharged after three days.

In late June, 22 weeks pregnant, she was readmitted, this time with severe abdominal pain. Based on a pathology work-up showing evidence of a splenic infarction, she was diagnosed with a splenic artery aneurysm. A vascular surgeon performed an emergency spleenectomy on her without complications.

The hospital’s contract neonatologist was consulted to watch over the unborn child. The neonatologist, who never examined the mother, merely reviewed her medical records relative to the pregnancy and present admission. She was discharged and returned to work.

In late August, during a follow-up with the cardiologist, she said she had been hospitalized for pneumonia and a splenic artery aneurysm, but she failed to mention the blood in her urine or the splenic artery infract. Based on the recent medical history provided and his physical examination, the cardiologist believed that the patient was stable and had no signs of symptoms consistent with subacute bacterial endocarditis. The specialist discharged her to follow up with him if she displayed any symptoms.

In early October, 36 weeks pregnant and with a high fever, she was admitted to a hospital. An emergency cesarean section was performed without complications. The newborn was discharged. The mother remained, however, and died several days later from an embolic cerebral infarct and hemorrhage. The medical examiner attributed her death to subacute bacterial endocarditis and an embolus from her heart valve vegetation that had traveled to her brain.

The plaintiff, the patient’s husband, brought suit against all the physicians who provided care to his wife prior to and during her pregnancy as well as the hospital and the insurer who claimed that she suffered from undiagnosed bacterial endocarditis as early as February 1994. The plaintiff maintained that all providers deviated from the standard of care by not making the appropriate diagnosis.

The case against the internist was based on a claim that the patient’s history of fatigue and severe chills after strenuous physical activity were signs and symptoms consistent with subacute bacterial endocarditis and that the internist should have arrived at that conclusion. The plaintiff also alleged that the internist failed to provide the various referral physicians with the patient’s full medical history, that she had more knowledge than anyone else concerning the patient’s condition and should have made the proper diagnosis or at least accumulated all the information so that someone else could.

The plaintiff alleged that the first cardiologist underdiagnosed the patient’s condition by underreading the echocardiogram results. The plaintiff maintained that the second cardiologist failed to obtain and review the pertinent medical and hospital records that would have revealed blood in the patient’s urine, suggesting embolic showering in the kidneys from vegetation on the heart valve and that the diagnosis of endocarditis could have then been made.

The claim against the vascular surgeon alleged that he failed to interpret the splenic infarct as a sign of endocarditis.

The plaintiff also sued the hospital and its staff neonatologist under theories of possible apparent agency and failure to recognize the circumstances. The plaintiff also indicated that all members of the obstetrical group failed to diagnose and treat the situation. The plaintiff argued that his wife would have lived if the correct diagnosis been made and appropriate antibiotic therapy initiated.

Each defendant denied negligence. The internist said she referred the decedent to cardiologists and appropriately relied upon their expertise and advice regarding any underlying cardiac conditions or complications. The cardiologists maintained that their care had been interrupted and delayed by the pregnancy and incomplete medical information. The vascular surgeon said he adequately read the splenic infarct as being caused by the rupture of an aneurysm or by an occlusion caused by the aneu-rysm. The hospital’s neonatologist said his care was restricted to the fetus. The obstetricians maintained that they, like the internist, appropriately relied upon the cardiologists’ opinions.

Prior to trial the plaintiff settled for confidential amounts with his wife’s HMO, vascular surgeon, neonatologist, and hospital. While the settlement amounts are unknown, the hospital considered it a nuisance claim and the amount was minimal.

During jury selection, the plaintiff settled with the cardiologists for confidential amounts. The case proceeded to trial against the only remaining defendants, the internist, and they prevailed.

What this means to you: This is an unfortunate situation that emphasizes the need for complete communication between patient and physician(s) and, in particular, between physicians. This case highlights the pitfalls of physicians relying on what the patient tells them, forgetting that what is important to a patient is not all that a physician needs or wants to know. There was a critical communication lapse when the patient failed to tell the cardiologist of her splenic infarct or that she had been hospitalized with blood in her urine. That lapse was coupled with the physician’s failure to obtain and review her records. The information may have been very important to the cardiologist, but the patient may have disregarded them. She may have overlooked the infarct thinking that the aneurysm and resultant surgery was the important medical fact. She may have disregarded the fact that blood was found in her urine because it is a frequent condition that usually does not require hospitalization.

Many physicians rely on the patient, forgetting that they come to the physician for their expertise. Doctors should always request copies of the medical records — at least the discharge summaries from any hospitalizations — to be sure they have all pertinent information regarding diagnosis, treatment, and all other information that could be important.

Risk managers should educate physicians about why asking for records is good practice and tell the medical records (health information management) department about the importance of timely faxing or sending copies to physicians’ offices when requested, says Leilani Kicklighter, RN, ARM, MBA, CPHRM, CHt, of The Kicklighter Group in Fort Lauderdale, FL.

"That being said, it is very common in such situations that a plaintiff’s attorney uses the scattergun technique to name any and everyone who had anything to do with the plaintiff when filing suit. Oftentimes it is the hospital or other facility that is the deep pocket, especially in jurisdictions like Florida, where there is no requirement that a doctor carry professional liability insurance coverage [however, they must prove financial responsibility upon licensure by the state.]

"This theory is further supported by this case as it is one that appears, on the facts as presented, to be totally related to diagnosis and treatment from the physician/medical view. There are no facts in this scenario that would lead one to believe that the hospital or its staff were negligent in any way. It is this type of claim that frustrates hospital risk managers and insurance carriers," states Kicklighter.

"This is the type of claim in which the hospital and other claimants are kept in the case for unknown reasons, during which time the hospital must continue to pay [its] defense counsel until [it] reach[es] a point where the claimant’s attorney will entertain an offer to settle. It is in these types of nuisance claims that I have seen claim expenses reach five to six times more than the actual settlement payout," notes Kicklighter.

"When to settle a claim is always a tricky decision for the risk manager and claims manager, and sometimes the principals get involved, especially when there is a strong conviction that the defense can prevail in convincing the jury. Emotional cases, those with exceptionally sympathetic plaintiffs, are other situations that are often difficult to address, particularly when it does not appear that the defendants were negligent but the outcome was devastating.

"The risk manager is always cognizant that all monies paid out against a claim — even those that are minimal — are taken into consideration by the carrier or actuary at the time of renewals or developing funding levels. In this case, each group of the defendants had to weigh their options and select the route best suited to them — the calls had to be made on when to settle [and for how much] and when to fight," she concludes.


• Dean Fresonke as personal representative of the estate of Nancy Fresonke vs. Prudential Health Care Plan Inc. d/b/a Prudential Health Care System of Orlando; Orlando Regional Health Care Systems Inc.,, Orange County (FL) Circuit Court, Case No. CI 95-6456.