The daughter spoke to Ms. P and relayed her mother’s symptoms, but she did not mention chest pain or shortness of breath, nor did Ms. P specifically ask.  

From Ms. P’s perspective, the symptoms that the daughter related—fever, nausea, achiness, exhaustion, etc.—were consistent with the flu, and they had been seeing a lot of cases in the clinic.

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She asked the daughter if there were any other symptoms but did not ask specifically about chest pain or breathing issues, and when the daughter replied “No,” Ms. P told the patient to stay at home and not come in to the clinic.

“She should start feeling better in another day or two,” Ms. P said.

However, this was not the case. On Wednesday, Mrs. O worsened. Her husband finally brought her into the clinic late Wednesday afternoon, and she was immediately sent to the emergency department of the hospital and diagnosed with pneumonia. Mrs. O received intravenous fluids, antibiotics, and oxygen, and had chest x-rays taken. The chest x-rays revealed that her condition had become so critical that it was beyond what the small hospital could treat, and she had to be airlifted to a larger hospital.

Mrs. O eventually recovered but had large medical bills and lost income, so she consulted an attorney who advised her to sue.

At trial, both Ms. P and Mrs. O testified. Ms. P was asked directly if she had inquired about serious symptoms, such as difficulty breathing or chest pain, which could indicate pneumonia. She admitted that she had not specifically asked. Ms. P was asked by the plaintiff’s attorney whether she would have given different advice to the patient had she known of those symptoms, and she had to confess that she would have advised Mrs. O to go to the hospital immediately.

The court decided that both Ms. P and Mrs. O were equally at fault for the delay in treatment of Mrs. O’s pneumonia. Therefore, Mrs. O only received 50% of the lost wages, medical expenses, and other costs she was claiming, rather than the full award.

Legal background

The court held that the standard of care required Ms. P to get a detailed medical history from Mrs. O. In particular, the court held that Ms. P had an affirmative duty to inquire into Mrs. O’s specific complaints rather than just use an oblique question, such as, “Are there any other symptoms?” Ms. P failed the patient by not following the clinic’s protocol and specifically asking about symptoms that could indicate pneumonia or other serious emergency illness.

However, the court also held that Mrs. O “had a duty to timely and accurately report her symptoms to a healthcare provider and a duty to timely seek medical aid for illness.” The court wrote that the “plaintiff breached that duty by failing to timely seek medical advice as her symptoms of illness other than flu developed.” Thus, the court was only willing to award Mrs. O half of the medical expenses that resulted from her having to be transferred and treated at a larger hospital.

Protecting yourself

Mrs. O should have sought medical help earlier. However, Ms. P was aware of the clinic’s protocol, and more importantly, the reason behind it. She knew that it was essential to identify patients who might have pneumonia or need immediate medical attention. And, she knew that directly asking about some of the symptoms of pneumonia, such as chest pain or breathing difficulties, would be most helpful in identifying the problem. Yet, she neglected to follow the clinic’s protocol, and she failed to get a detailed medical history from the patient.

An ill patient may not think to mention every symptom or may not be aware of which symptoms are most worth mentioning. As the clinician, it is your responsibility to ask the leading questions that will help you get your answers and understand your patient’s complaints. Communication, which includes asking these questions, is a crucial key for a healthcare practitioner. 

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