Failure to Diagnose a Brain Lesion in a Referred Patient
Digest, Fall, 1992
ALLEGATION Insured ophthalmologist allegedly failed to diagnose an occipital brain lesion.
DISPOSITION Motion of Summary Judgment was granted.
Background
In malpractice cases where defense counsel believes there are no issues of material fact for a jury to decide, counsel can request that the matter be dismissed prior to trial by filing a Motion for Summary Judgment. A Summary Judgment allows a judge to make an independent ruling on the legal issues in the case. Scrupulous medical records are essential for such motions to prevail.
Case Summary
The patient was a 60-year-old female who initially presented to the emergency department with complaints of dizziness, headaches and blurred vision of several days duration. She was admitted to the hospital for a diagnostic workup to include a CT scan which was reported as normal. She was diagnosed with transient ischemic attack with carotid atherosclerosis and was ultimately discharged.
The family practitioner referred the patient for follow-up to a neurologist, psychiatrist and the insured ophthalmologist. No neuro deficits were found. Initially, the insured treated the patient for wide-angle glaucoma. On a subsequent visit, the insured did a visual field examination which revealed a right homonymous hemianopsia. The insured discussed these findings with the family physician who reviewed the CT scan. A repeat CT scan was not performed at that time.
Three months later, the patient was admitted again as an inpatient for a diagnostic workup. A subsequent CT scan revealed an area of infarct. An alternate diagnosis of tumor was considered, but ruled out given the distribution and involvement of the cortex. Based on this and a cerebral angiogram, the patient was diagnosed with ischemic infarction secondary to ASHD. She was seen then by another ophthalmologist for treatment of her original complaints as presented to the insured. Two months later, the patient was diagnosed with inoperable mass of the occipital area. Suit was filed against all treating physicians.
Outcome
After initial pleadings and discovery, a Motion for Summary Judgment was granted based on the testimony of independent expert physicians who supported the insured’s position. They concluded that the lesion was a non-treatable condition at the time the plaintiff presented to the insured and that the plaintiff’s presenting symptoms were appropriately treated. The insured’s patient records indicated appropriate referral and follow-up with the family practitioner and, as such, adherence to the standard of care. The record keeping of the insured thus became an essential part of the defense and summary judgment for the defendant.
Risk Management Principles and Commentary
Ophthalmologists are often referred patients by another treating physician. As a means of loss control, measures should be instituted to provide for coordination of care. In this day and age of managed care, this is not always possible. However, follow-up and documentation often are key measures in the prevention of losses. The following may assist in this process:
- Obtain a complete medical history from the patient and referring physician.
- Maintain communication with the referring physician. This includes copies of all diagnostic reports and consults of other treating physicians as well as the ophthalmologist’s own conclusions.
- Promptly make referrals to and follow-up with subspecialists when there are suspicions of an unconfirmed diagnosis.
Failure to Diagnose an Occipital Aneurysm
Digest, Spring, 1994
Allegation
Insured ophthalmologist allegedly failed to diagnose an occipital aneurysm. Additionally, there were allegations of failure to diagnose and treat plaintiff’s headache disorder, which resulted in a left hemisensory deficit.
Disposition
Dismissed.
Background
Sometimes the initial discovery phase of a lawsuit can be the most productive. When the facts are clear and the evidence is persuasive, a plaintiff often can be educated in the pathophysiology of the case and dissuaded from pursuing a suit that has little chance of success. The following case is an example of how the OMIC defense team worked with the plaintiff’s attorney to obtain a dismissal.
Case Summary
The patient was a 79-year-old woman who had been a patient of the insured for four years. She was examined for complaints of difficulty with night vision, frontal headaches and URI. The decreased night vision was consistent with the previously diagnosed cataract formation in the eye. There was no mention of double vision and the pupils were equal and reactive to light. An extraocular exam was normal. The optic nerve was examined stereoscopically, and no papilledema was found. A visual field exam was not performed. A prescription change was made in the patient’s glasses and the patient left the office.
Two months later, the patient suffered a stroke due to an occipital aneurysm. She claimed that the insured ophthalmologist was negligent in failing to order a CT scan to evaluate her headaches at her previous visit.
Outcome
When the medical experts reviewed this case, they were able to defend the insured because he had carefully documented the office exam as well as the history presented by the patient. Each expert who reviewed the case came to the same conclusion: there was no indication to order a CT scan for this patient.
These reviews enabled defense counsel to discuss the case frankly with the plaintiff attorney and convince the attorney that the insured was not an appropriate defendant in this case. The plaintiff attorney persuaded her client to dismiss the case against the insured ophthalmologist based largely on the clearly written notes in the office record, which correlated with the standard of care as stated by defense experts. It was later discovered that the plaintiff attorney was unable to find an expert witness who would testify against the insured based on the facts in the record.
Risk Management Principlesand Commentary
In this age of managed care and cost cutting, physicians frequently may have to decide whether the diagnostic value of a given test justifies its cost. Medical tests always will be essential to accurate diagnosis. The guideline for whether they are indicated must continue to be based on sound medical judgment, even in the face of budget cuts and increasing pressure to keep costs down. Not every test may be needed to make a diagnosis, but if a diagnosis is missed because a necessary test was omitted, the cost of the test will not provide a convincing defense.
At times it may seem a precarious balance between the cost of additional testing and the benefit of the test to the patient. Medically sound decisions supported by clear and proper documentation provide the best defense if a claim is filed. Ultimately, one hopes the goals of physicians and utilization reviewers will coincide: to provide safe, competent and cost-effective patient care.
Failure to Diagnose Toxic Optic Neuropathy
Digest, Winter, 1995
Allegation
Insured ophthalmologist allegedly failed to diagnose ethambutol toxicity.
Disposition
Lawsuit was settled on behalf of the insured ophthalmologist. Co-defendant pulmonologist also settled for an undisclosed amount.
Background
Ophthalmologists should be alert to the potential visual side effects of the non-ophthalmic medications their patients use and be prepared to include even rare toxic conditions in their differential diagnoses.
Case Summary
The plaintiff was a 67-year-old male with a long-standing history of bronchiectasis and non-tuberculosis mycobacterial infection. In 1991, the patient’s pulmonologist added 1000 mg. per day of ethambutol to the medication regimen. Although ethambutol is associated with liver damage and ophthalmic toxicity, the pulmonologist only screened the patient for liver complications. He did not perform any ophthalmic testing or refer the plaintiff to an ophthalmologist for monitoring.
Approximately six months after the plaintiff had started on ethambutol, he presented to the insured ophthalmologist complaining of a heavy feeling in his eyes, diplopia, and esophoria. Visual acuity was measured at 20/25 +/- OU with pinhole at 20- and 20. Mild cataracts OU were noted. The insured indicated in his notes that the plaintiff might need a prism if the double vision increased. A medication history was recorded and included ethambutol.
Four months later, the plaintiff returned to the insured’s office with continued complaints of heaviness in the right corner of his right eye, blurry vision, and occasional horizontal diplopia. At this visit, the plaintiff’s visual acuity was 20/25 OU. The insured noted 1-2+ cataracts bilaterally. Media clarity was documented as 20/25. The diagnosis was possible ptosis and cataracts, and the plaintiff was advised to return in three weeks for further evaluation. When the plaintiff returned as instructed, visual acuity OD had decreased to 20/40, and he continued to complain of infrequent diplopia at night. The insured recommended cataract removal. Over the next several weeks, the plaintiff’s vision deteriorated rapidly to 20/200 OD. Cataract surgery was performed in late 1992 without complication. Postoperatively, the plaintiff’s visual acuity OD was count fingers. The insured documented in his notes that he did not understand why the plaintiff did not have better vision. A month after the surgery, the plaintiff was demonstrating visual loss in the left eye as well. Concerned about the continued vision loss in the left eye, the insured ordered an MRI. The results were normal. At this point, the insured referred the plaintiff to a neuro-ophthalmologist.
The neuro-ophthalmologist suspected toxic optic neuropathy resulting from ethambutol and recommended that the pulmonologist immediately take the plaintiff off the drug. The plaintiff continued to be treated by the neuro-ophthalmologist. Over time, his visual acuity improved to 20/200 OD and 20/50 OS, and his central scotomas and much of his color vision problems were resolved.
Analysis
Defense experts identified several issues that made defense of the case difficult. First, the medical records did not clearly reflect a recognition of the potential for ethambutol to cause toxic optic neuropathy. Second, there was no visual field testing performed. Even if visual fields do not assist in specifically diagnosing ethambutol toxicity, abnormal results might suggest the need for further evaluation or referral to a specialist. Third, the inconsistency between the degree of visual loss and the severity of the cataracts suggests looking for an alternative explanation for the patient’s problems.
Defense experts who consulted on the case did point out, however, that ethambutol toxic optic neuropathy is a very rare phenomenon and not one typically seen in a general ophthalmologist’s practice. This allowed the defense to argue during settlement negotiations that the insured was justified in pursuing more common explanations for the plaintiff’s visual problems (i.e., cataracts) before considering unusual conditions.
Risk Management Principlesand Commentary
An ophthalmologist’s vigilance concerning medications should extend beyond the prevention of classic medication errors that can arise in clinical settings. It should extend to evaluating the impact of medications prescribed by other treating physicians on the health of the patient’s eyes. General ophthalmologists serving an elderly population are so accustomed to cataracts being the major cause of visual problems among their patients that they may forget to document the possibility of other explanations, such as drug toxicity, in their differential diagnosis. If a lawsuit ensues, the lack of such documentation makes it difficult to argue that the physician was proceeding in an orderly fashion to rule out possible causes of the patient’s visual deterioration.
Failure to Diagnose Temporal Arteritis
By Stacey Meyer
OMIC Claims/Litigation Associate
Digest, Winter 1998
ALLEGATION
Delayed diagnosis and treatment of temporal arteritis.
DISPOSITION
Claim settled on behalf of insured ophthalmologist.
Case Summary
A 70-year-old male was referred by his family practitioner for an eye exam. He was seen by one of the insured’s ophthalmic technicians, who noted the patient’s complaints of waking up in the morning with a history of headaches and difficulty with reading. Following the technician’s work-up, the insured performed a complete eye exam on the patient. Visual field testing and mobility were within normal limits. Funduscopic examination revealed spontaneous venous pulsation and a normal optic disc. The insured’s impression was conjunctivitis sicca and early cataracts. He noted that the patient’s headaches were most probably related to sinus problems and referred the patient back to his family practitioner.
The following week, the patient presented to his family practitioner with complaints of sporadic headaches during the previous three weeks, jaw pain and loss of appetite. The family practitioner diagnosed headaches secondary to sinusitis, polyuria and polydipsia.
The patient returned to the insured six weeks later with complaints of shutter type vision and blank veils of vision in his left eye. An examination revealed count finger vision. To rule out temporal arteritis and/or anterior ischemic optic neuropathy, the insured ordered a SED rate, which returned as 79. The patient was immediately started on 50 mg of Prednisone. A temporal biopsy two days later confirmed temporal arteritis.
The patient’s present visual acuity is no light perception OS and an altitudinal field defect OD with visual loss in the upper half and a small ring scotoma in the far peripheral field inferiorly.
Analysis
The patient alleged that the insured failed to obtain an adequate history and order appropriate testing, thereby resulting in delayed diagnosis and treatment of temporal arteritis. More specifically, the plaintiff attorney argued that the insured should have diagnosed temporal arteritits on the first visit, claiming that when an elderly patient presents with new headache complaints, temporal arteritis should always be part of the differential diagnosis. Because the insured took no steps to rule out temporal arteritis, the disease was allowed to progress, and the patient lost all vision OS and suffered a significant altitudinal vision defect OD. At the very least, the plaintiff maintained, the insured should have asked the patient questions about his headache complaints and any associated symptoms.
Defense experts pointed out that the insured did not chart any follow-up regarding the patient’s new onset of headaches. In light of the patient’s age, questions should have been asked to rule out giant cell arteritis and to elicit whether he was suffering from any other symptoms associated with this disease. The experts opined that while the complaints of headache alone may not be enough to warrant extensive neurological work-up, the do warrant asking the patient related questions and documenting pertinent negatives. Through discovery, it was apparent that while the insured did address the patient’s headache complaints, he did not record the relevant questions and responses in the medical record. Defense counsel was therefore unable to use the medical record to dispute the plaintiff’s argument that the diagnosis should have been made earlier.
Risk Management Principles
When failure to diagnose is alleged, any physician in the chain of events will be brought into the suit. In this case, both the family practitioner and the ophthalmologist were parties to the suit and each contributed to the settlement of the claim. That is why it is imperative to thoroughly explore and address any complaints described by a patient and to record all relevant questions and responses in the medical record. While it may be impractical to order a sedimentation rate for each older person presenting with a headache, it is a simple matter to question the patient about other symptoms that might indicate temporal arteritis. Finally, when referring at-risk patients to a primary care physician or specialist, do so promptly and follow up with a request for exam and test results.
Trauma Cases: Risky to Treat, Difficult to Defend
By Jennifer Takeman, JD
Digest, Spring 2003
ALLEGATION Failure to refer trauma patient to ER for neurological exam delayed diagnosis of brain hemorrhage.
DISPOSITION Defense verdict on behalf of insured oph- thalmologist and subsequent treating neurologist.
Case Summary
A16-year-old male was struck in the right cheek when he pulled a wire hanger serving as a radio antenna from the hood of his car. He complained of pain and immediate blindness in the right eye lasting for approximately 20 minutes before gradually recovering sight. The boy’s father called the insured ophthalmologist who came in from home to examine him approximately 80 minutes after the accident. The patient had by then developed a severe headache.
Examination revealed VA 20/25 OD, 20/30 OS. Pupils were four millimeters and reactive to light with positive escape on the right. There was a small puncture wound beneath the right eye. Motility and confrontational visual fields were normal and the right globe was intact with a pressure of 17 mm Hg. Slit lamp examination was entirely within normal limits and direct ophthalmoscopy through an undilated pupil revealed sharp disc margins and positive venous pulsations. The insured did not dilate the right fundus because he wanted to preserve the pupillary reactions for subsequent treaters. He charted a right affer- ent pupillary defect and “ ? scan to r/o bleed.”
The insured called a nearby neurologist and advised the office staff that the patient needed to be seen immediately due to an afferent pupillary defect and headache complaints. The neurologist examined the patient less than half an hour later and documented that the exam seemed normal. There was no mention of an afferent pupillary defect. He sched- uled the patient for an MRI two days later.
Back at home, the patient blew his nose, immediately complained of an excruciating headache, and became diaphoretic. He was rushed to the ER where a CT scan revealed a large right thalamic and intraventricular hemorrhage. Due to the hemorrhage location, surgery was extremely risky and the prognosis was poor even if the patient survived it. The family rejected surgical intervention and the patient died the next day. The insured ophthalmologist was sued along with the neurologist.
Analysis
The plaintiff’s expert opined that the patient should have been referred directly to the hospital for neurological examination or, failing that, referred once the insured detected an abnormal pupillary reaction. The expert was critical of the insured for not communicating his findings to the neurologist directly. He maintained that the negligence of both doctors resulted in a three-hour delay in diagnosing the hemorrhage.
The defense expert countered that the history relayed by the patient’s father when he called the insured suggested a perforated globe, and since the finding of an afferent pupillary defect was indicative only of trauma to the optic nerve, not a brain injury, it was his opinion that referring the patient to the neurologist, not the ER, was appropriate. Further, he explained, it is not unusual to leave details of a patient’s condition with office personnel as it is often impossible for physicians to speak directly with one another in a timely manner.
The jury returned a verdict in favor of both the insured ophthalmologist and the neurologist.
Risk Management Principles
The decedent’s parents were sympathetic plaintiffs and might have won on that basis alone. Fortunately, the jury listened to the facts and understood that the insured’s care and treat- ment met the standard of care. However, had it not been for the insured’s prompt examina- tion of the patient, immediate referral to the neurologist, and thorough documentation of his findings, the jury might easily have found for the plaintiffs. One additional precaution that the insured might have taken would have been to fax a copy of his chart notes to the consulting neurologist, thereby alerting the neurologist to his concern about a possible bleed. In general, a faxed copy of the chart notes, including the referring physician’s differential diagnosis and questions for the consultant, will ensure that the consultant has all of the pertinent information to evaluate the patient. In this case, it might even have precluded the insured’s involvement in the lawsuit.
Ms. Takeman has defended physicians, nurses, and hospitals in medical malpractice cases. She has worked in hospital risk management and as a claims representative for an insurance company.
