Physician Legal Review & Commentary

Failure to diagnose herniated disk results in paralysis of male, $15 million jury award

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

Tracey A. Reiser, Esq.
Kaufman Borgeest & Ryan
Valhalla, NY

Bruce Cohn, JD, MPH
Vice President
Risk Management & Legal Affairs
Winthrop-University Hospital
Mineola, NY

News: A 36-year-old male presented to the emergency department with complaints of severe neck pain and numbness in his arms and legs. He was discharged from the emergency department with a diagnosis of neck strain. Within a few hours after his discharge from the emergency department, he became completely paralyzed from the chest down. He then returned to the hospital and was subsequently left untreated for nearly two hours. Ultimately, it was determined that the patient's neck pain was the result of a herniated disk that was compressing his spinal cord and causing progressive neurological injury. The plaintiff commenced suit against the hospital and alleged negligent care and treatment. The jury returned an award of $15 million in favor of the plaintiff.

Background: A 36-year-old male arrived at the emergency department of a hospital in Colorado with severe neck pain and numbness in his arms and legs. He was examined by the emergency department attending physician and diagnosed with a neck strain. He was discharged to home. Following his discharge, the plaintiff returned home; however, within only a few hours, he suffered complete paralysis from the chest down. He then returned to the same hospital that previously had discharged him, and he was left untreated for nearly two hours. It later was determined that the plaintiff suffered complete permanent paralysis from the chest down caused by a herniated disc. Apparently, the herniated disc was compressing his spinal cord and causing progressive neurologic injury.

The plaintiff commenced a lawsuit against the hospital and emergency department physician. The plaintiff argued that the defendants failed to conduct a proper neurologic examination during his admission to the emergency department. Moreover, the plaintiff argued that the emergency department attending misdiagnosed his symptoms as a neck sprain, which the plaintiff argued resulted in a failure to timely and properly diagnose his true condition, namely the disc herniation causing spinal cord compression. The plaintiff also contended that a correct diagnosis was prolonged further as he was left untreated for an additional two hours after returning to the emergency department, even with complete paralysis.

The hospital settled with the plaintiff prior to commencement of the three-week trial for an undisclosed amount. Following the three-week jury trial, the jury returned a $15 million verdict. The jury awarded the plaintiff $10 million of the $15 million dollar award for pain and suffering. Due to Colorado's cap on non-economic damages, the award might be reduced, and the plaintiff might recover only $300,000 of the $10 million awarded for pain and suffering. The emergency department physician is now responsible for payment for his respective share of the jury's verdict. This was the largest medical malpractice verdict recorded in Colorado.

What this means to you: A 36-year-old man who does not appear to have any other issues appears in the emergency department with complaints of severe neck pain and numbness in his arms and legs. The physician's diagnosis of neck strain seems somewhat incongruous with the patient's significant complaints, but we always hesitate to "second guess" the physician, particularly in a busy emergency department. In this case, there was a clear misdiagnosis with an egregious result.

As is typical in many medical malpractice cases, the correct diagnosis is evident with 20-20 hindsight, but we need to look at what was going on at the time. It would be interesting to see the root cause analysis of this event. Was the emergency department extremely busy? Was it close to a shift change, or did the emergency department physician have an unusual amount of active patients at the time of his encounter with this patient? Physicians are trained to start with multiple differential diagnoses, eliminate the really unlikely possibilities, and narrow down to the most likely scenario. Did the physician eliminate the most dangerous potential before diagnosing probably the most common etiology of the complaint, the one that he most often diagnoses?

It is unclear in this case what testing was available, or if the doctor considered an MRI or a CT scan to eliminate a serious cause of the patient's complaints. Physicians are given the message by risk managers and malpractice insurance carriers to do everything to be sure of the diagnosis and prevent harm, but they are cautioned by their administrators and patient satisfaction not to order testing just to practice "defensive medicine." We don't have the ability to review the records in detail or look at their internal analysis that might reveal that the volume of patients was high or that the physician might have been dealing with critical patients, codes, or traumas at the same time. Many of the issues in this case hinge on the patient's actual complaints in the medical record and how those complaints progressed while he was in the care of the physician and the hospital.

The articles refer to the patient complaining of severe neck pain and numbness in his arms and legs, but is that the language of the plaintiff's complaint or the language of the medical record? Often in these situations, the patient's condition improves while in the emergency department, which can lead to the conclusion that because the patient is improving, the symptoms are indicative of a more minor condition.

This case has another fact that might have led to a successful result at trial for the plaintiff: The patient returns to the emergency department within hours of his discharge with worsening complaints and was not seen for two hours. Even if the diagnosis at the first encounter was incorrect, the second encounter creates the classical argument of failure to rescue. If the emergency department physician believed the patient to have neck strain initially, the return of any patient within hours to the emergency department should raise red flags and cause an immediate reevaluation of the patient's symptoms with additional testing, consultation, and intervention. We are not privy to the jury deliberations, but it can be safely assumed that the failure to respond timely to the patient's complaints on the return visit heavily influenced the jury in their verdict for the plaintiff.

As always, the emergency department is a dangerous place clinically and legally. The encounters are short, the doctors are under pressure to move patients through the system, and there is usually much less data available to make an appropriate and well-developed diagnosis. The two items that stand out in this case are that physicians in the emergency department must eliminate the most dangerous differential diagnosis before setting on a less serious diagnosis. Taking the facts as set out by the plaintiff, the complaints of numbness might have warranted a more comprehensive workup than the one that was done. The second major teaching point is that any patient who returns with the same or especially worsening conditions should be assumed to be seriously ill and seen immediately. The return of the patient that closely to the first discharge increases the likelihood of a serious condition being present. For this reason, many emergency departments have a protocol that mandates additional testing and the calling of a specialist in these situations.


Circuit Court for Baltimore City, Case No. 24C11001081 (Md.Cir.Ct. 2012).