The ED’s diagnosis didn’t sit right with the clinician, but her supervising physician did not act quickly enough.

Ms. F is a physician assistant in a family practice clinic. One of her patients was a 30-year-old man who worked as a laborer and liked to relax with a few drinks after work. While generally healthy, he had visited the clinic three times in the past month. His complaints started with several days of abdominal pain, chills, fever, cough, vomiting, and diarrhea. Late one night, he visited the local emergency department (ED), where he was told that he had gastroenteritis. The ED physician advised him to drink only fluids for 24 hours, after which time he should expect improvement. The patient was then referred back to Ms. F’s clinic.

The man came to the office three days later reporting that his symptoms had worsened, especially the chills and fevers (his stomach pain was also severe at times). When Ms. F examined him, his symptoms did not fit the typical gastroenteritis profile. The man appeared more toxic and dehydrated, and he had more abdominal pain than she had been seeing in other patients with the same disorder. Her supervising physician examined the patient and agreed with her assessment. He asked about the patient’s pulmonary symptoms, which were marked by rapid respirations and cough. The supervising physician concluded that the man also had a pulmonary infection, most likely bacterial. He prescribed a round of antibiotics.

The patient called the clinic the next day to report slight improvement. Two weeks later, he returned to the office and said that he had finished the antibiotics three days ago, but his fever had come back along with the abdominal pain and chills. Ms. F was unsure what to do and called her supervising physician, who was out of the office. He listened carefully to her summation and decided to continue the antibiotics for the presumed pulmonary infection.


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After one week, the patient was still no better. A complete blood count with differential indicated a granulocytosis with left shift, and a chest x-ray showed the presence of a right pulmonary effusion above the diaphragm (which the physician viewed as a confirmation of his diagnosis of pulmonary infection). A decision was made to repeat the course of antibiotics. Finally, one month after the original presentation, the patient returned to the ED where it was recognized that he was toxic and dehydrated with a severe bacterial infection of unknown type. He stayed at the hospital for two days before being transferred to a larger university facility nearby. Physicians there diagnosed abdominal-organ sepsis with superior mesenteric vein thrombosis and liver abscesses.

The patient was treated with ultrasound-guided drainage of the liver abscesses and multiple IV antibiotics over the course of the next month. He ran up a $147,000 hospital bill and had to convalesce at home for three months, during which time he couldn’t work. Faced with scant income and a mountain of medical bills, he turned to a plaintiff’s lawyer for advice. After having the man’s chart reviewed by an expert internist, the lawyer filed a malpractice suit against Ms. F and her supervising physician for failing to diagnose and adequately treat the abdominal infection and not providing sufficient follow-up care. These missteps, the lawsuit claimed, allowed the patient’s condition to worsen, delayed recovery, and threatened his life.

In his deposition, the patient described the “medical runaround” suffered at the hands of Ms. F and her supervising physician. Plaintiff’s experts testified that errors in the original diagnoses should have been obvious when the patient failed to improve and that the delay had allowed the man’s condition to worsen. During the depositions of Ms. F and her supervising physician, the plaintiff’s lawyer spent a great deal of time trying to nail down precisely how long and how detailed the patient’s office visits were.

He also questioned the treatment plans the providers had devised as the patient’s symptoms persisted. Ms. F used her notes to walk the judge through the clinical visits and did her best to outline the development of her treatment plans as the man’s case progressed. Lastly, the defense experts testified that the diagnoses and management of the infected patient were appropriate under the circumstances, especially considering the rare nature of the problem eventually discovered at the university hospital. The two legal teams discussed settlement over the next several weeks but could not come to agreement.

At trial, Ms. F repeated her testimony. The jury listened attentively and patiently as she worked through her notes line by line, explaining her abbreviations and comments to describe the patient’s developing clinical picture. Her supervising physician followed her on the stand and gave an account of his clinical assessment based largely on Ms. F’s clinical notes. Next, the experts presented their opinions as to the standard of care in the situations presented by the patient. At last, the lawyers gave their final summary, and the jury retired to discuss their decision. After one day of deliberation, the jury ruled that Ms. F and her supervising physician were not negligent.

Legal background

Since more than 90% of malpractice lawsuits settle before or during trial, determining the settlement value of a case occupies a great deal of the plaintiff’s lawyer’s and insurance adjuster’s time. The two sides typically arrive at their valuation of the case by comparing similar cases that have gone to trial before the same judge in the same locale. The two sides usually come to similar valuations, and settlement follows shortly thereafter. In this case, the opposing lawyers valued the case so differently that compromise was not possible. The testimony performance and thorough medical records of Ms. F helped swing the outcome in her favor.

Risk-management principles

One of the most valuable skills a provider can possess (and one that improves with experience) is the ability to sense when a patient does not fit a clinical profile. The seasoned clinician will notice that something is not right when a patient with a seemingly common condition becomes sicker than the average patient with that illness or has atypical symptoms. Ms. F sought the advice of her supervising physician because of her unease with the initial diagnosis of gastroenteritis.

Unfortunately, the physician failed to take her concerns seriously enough to re-examine the patient and follow through with lab tests, resulting in a delayed diagnosis and a malpractice suit. To avoid such a situation, communicate on a predetermined scale of concern. Alerting a supervising physician that you are requesting a “level 3 review,” for example, indicates a high degree of concern that the patient needs careful attention. A lower level of concern (e.g., “level 1 review”) should be used for cases in which the provider is fairly certain of the diagnosis. Such formalized requests will help avoid the lack of communication that is the basis for many malpractice suits.