It was, as usual, a busy day in the emergency department (ED) of the medical center where Ms. P worked as a urology physician assistant. Ms. P assisted the on-call urologist and treated patients when the physician was not in. Most of Ms. P’s patients were older, so she remembered the cases that strayed from this pattern. 

One of these cases was Mr. E, a teenager who had presented to the ED approximately six weeks earlier complaining of blood in his urine. The urologist, Dr. B, was in that day and handled the case, but 
Ms. P was surprised when she saw the teenager back in the ED only a month and a half later. 

Before speaking with the patient, who was waiting in the examination room with his mother, 
Ms. P reviewed the clinical notes from his previous visit. Laboratory results revealed both hematuria and proteinuria. Dr. B had noted the diagnosis as a urinary tract infection (UTI) and prescribed antibiotics, which apparently had failed to work.

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The patient was now complaining of continued hematuria as well as a fever, sore throat and right flank pain. Ms. P questioned both the patient and his mother to determine whether he’d taken his antibiotic properly. Mr. E had followed the protocol correctly.

After examining the teenager, Ms. P decided to call Dr. B to discuss the exam, evaluation and treatment plan. The urologist could be irritable when he felt his personal time was being infringed on, but Ms. P thought a call was necessary. She believed that the patient should have improved greatly after taking the antibiotic, and not taken a turn for the worse. Part of her quietly questioned whether the original diagnosis of a UTI was correct. 

Ms. P called Dr. B, who was at a family function. The physician was brusque and clearly wanted to be off the phone. Ms. P described Mr. E’s new symptoms, and explained that the antibiotic had not helped. The urologist told her to prescribe a different antibiotic. 

“What about the new symptoms?” Ms. P asked.

“Those are consistent with a UTI,” replied Dr. B. “Don’t worry about it.”

“But is there any other possible diagnosis we should consider?” pressed Ms. P.

“It’s a UTI,” said the physician. “If it doesn’t resolve, he’ll be back and we can question it then.”

Ms. P hung up the phone feeling unsettled. Her instincts told her that this wasn’t a straightforward UTI. But the ED was getting busy, and Ms. P knew she couldn’t devote much more time to this case. She noted the doctor’s instructions in the chart, prescribed another antibiotic, and told the patient to come back if he didn’t feel better. 

Two years later, Mr. E returned to the ED, complaining that he was spitting up blood and had pain in his side below his ribs. Tests showed that his kidneys were not functioning.

A renal biopsy revealed that the patient had late-stage immunoglobulin A nephropathy, a severe kidney disease that would require hemodialysis three times a week. A specialist concluded that the kidney disease had progressed too long without treatment, resulting in irreversible kidney damage. 

Mr. E and his mother found an attorney who encouraged them to sue the urologist and Ms. P for failing to diagnose nephritis during the two ED visits. The attorney hired a pediatric nephrologist to go over the records and act as an expert in the case. The state in which this case took place required an expert’s certification to initiate a medical malpractice suit.

In his certification for the lawsuit, the nephrologist alleged that Dr. B and Ms. P had departed from the standards of practice among members of the same health professions with similar training and experience by failing to include nephritis as a differential diagnosis for the patient when he presented to the ED. 

Ms. P explained to her defense attorney that she had had reservations about the diagnosis at the time, but had not noted anything on the chart and had deferred to Dr. B. The attorney explained that without notes proving that she had challenged the diagnosis, they had no choice but to proceed on the basis that the presentation appeared to be a UTI.

“We do have one possibilty,” said the attorney. “The expert they used to get the case certified was a nephrologist, not a urologist. Since he is not in the same field, I am going to argue that the certification is invalid.”

The attorney made a motion to dismiss, arguing that the nephrologist was not a qualified expert. The lower court agreed and dismissed the case. However, the plaintiffs appealed, and the case went to court.

Legal background

The appeals court had to determine whether the lower court erred in determining that a board-certified nephrologist was not qualified as an expert to testify that a urologist and a PA violated the standard of care in treating the patient. 

Previous case law in the state had held that it wasn’t necessary for a certifying or testifying expert witness in a medical malpractice case to be the same kind of health-care provider as the defendant, but the expert must be in a related field. 

In deciding whether nephrology and urology were related, the court considered two things. First, the court looked at the definition of both fields of practice and concluded that they share a common focus on the kidneys. Next, the court looked at the circumstances of the case to determine whether nephrology and urology overlap in the context of the treatment or procedure at issue.

Since the treatment in this case involved a differential diagnosis, the court questioned the expert about whether in his practice of nephrology he had participated in on-call services for EDs that required him to make differential diagnoses. The expert testified that he had, and that he often had to refer patients to other specialists, particularly urologists. The expert also testified that he had treated patients in the ED with both hematuria and proteinuria. The court ruled that the certification of the case was valid.

Both Ms. P and Dr. B ended up settling out of court. The plaintiff received a sum close to the limits of their respective liability coverage.

Protecting yourself

Do not ignore your instincts. If something feels wrong, take the time to follow up and pursue other angles. Ms. P could have asked another physician to take a look at the patient if she was uncomfortable with Dr. B’s diagnosis. 

She also could have questioned whether there could be another cause for the hematuria. Coming up with a differential diagnosis can be challenging, but it is important to look past your particular specialty when considering possible diagnoses. Had either Dr. B or Ms. P been willing to consider other alternatives to a UTI, the young man’s irreversible kidney damage might have been prevented. 

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.