A case of migraine that ended in brain surgery provides a lesson in how to handle a return patient.

As a recent graduate of a prestigious physician assistant master’s degree program, Ms. D’s first job was with a busy urgent-care facility in which she rapidly accumulated clinical skills in a variety of areas. One of her patients was a 40-year-old woman from Honduras who worked as a housekeeper. Early one morning, several family members accompanied the woman to the urgent-care center, where she complained of a severe headache, vomiting, and syncope. She had no prior history of headache. The physician on duty performed a careful neurologic examination but found no abnormalities.

He ordered an injection of ketorolac (Toradol) and kept her under observation for one hour. The patient was discharged after reporting that the headache had ceased.


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The next morning, the woman returned to the center and reported that the headache had returned and now was worse than before. A second physician examined her and found nothing out of the ordinary. He diagnosed new-onset migraine and referred the woman to a neurologist. He also ordered another injection of Toradol as well as hydroxyzine (Vistaril). After several hours of observation, the patient reported improvement and was discharged.

Approximately 12 hours later, the woman returned once more with the same symptoms. This time, Ms. D took the history and was about to examine the patient when she lost consciousness and collapsed. The staff called 911, and an ambulance rushed the patient to the nearest emergency department. A CT scan showed that an arteriovenous malformation (AVM) in the area of the basal ganglia was hemorrhaging. After discussion with the family, the patient was taken to surgery and underwent evacuation of intracerebral hematoma and cauterization of some bleeding points deep in the basal ganglia area. The patient recovered from surgery but suffered significant brain damage. Even after rehabilitation, she was permanently hemiplegic and confined to a wheelchair.

The patient’s family made arrangements for a plaintiff’s lawyer to examine the chart from the urgent-care center. An expert neurosurgeon hired by the plaintiff’s lawyer reviewed the chart and concluded that the urgent-care staff should have ordered a CT scan at the first presentation of severe headache. This would have led to timely surgery and prevented the ensuing brain damage. With this assessment in hand, the attorney filed a malpractice suit against Ms. D, the two physicians, and the HMO that owned the clinic.

The family was concerned that the patient’s status as an illegal immigrant would adversely affect their case. The plaintiff’s lawyer assured them that this would not be a problem and arranged to have an interpreter present for the legal proceedings. While most states guarantee access to a court-appointed interpreter for anyone charged with a crime, there is no such right in civil proceedings. State-paid interpreters are usually provided only for quasi-criminal juvenile cases, small-claims cases, and domestic violence cases.

The depositions began one year later. The patient testified first and explained the three visits she made to the urgent-care center before the disastrous intracranial bleed. She described the physical and financial difficulties she now faced. She denied that she intended to go back to Honduras after the case was over, thus preventing the possibility of lowering estimated damages by citing the lower cost of care in her home country. Following the plaintiff, Ms. D worked through her portion of the chart (the third visit). She described the meaning and significance of each line entry and explained her experience with this finding. Finally, the patient’s current physicians provided their version of her current status. They noted that her urinary incontinence and hemiplegia required around-the-clock care, which an economist testified would cost a total of $500,000 over the duration of the patient’s life.

At the end of the depositions, the defense met to estimate the value of the case. It found itself up against an extremely sympathetic patient and a diagnosis that was missed by a pair of physicians on two separate visits. On the other hand, the defense experts testified that the woman’s vague symptoms did not indicate an intracranial bleed or warrant a CT scan. Furthermore, the bleed was in the basal ganglia, a deep area of the brain that is not accessible to ligation of an AVM. The HMO indicated that it would contribute a substantial amount toward any settlement, and an offer was made to the plaintiff’s lawyer. After some negotiation, the two sides agreed to settle for $3.75 million. The HMO contributed $3.5 million, with the other $250,000 coming from the policy limits of the second physician.

Legal background

Although an immigrant, legal or otherwise, has the same rights in a malpractice trial as a naturalized citizen, jury awards are typically smaller for non-English-speaking plaintiffs. This is partially due to the fact that jurors suspect these patients will return to their native country to spend the money. While the payout in this case was nonetheless substantial, this bias reduces the settlement value of cases involving noncitizens.

As HMOs open more clinics to service their patients, they place themselves in the position of provider rather than insurer and are increasingly vulnerable to malpractice suits. The clinic in this case was directly owned by the HMO, which was therefore liable as the employer of the clinicians who worked there. Under the provisions of the Employee Retirement Income Security Act (ERISA), an HMO that limits its role to that of insurer is liable only for denial-of-care decisions and not for standard medical malpractice.

Risk-management principles

HMOs and other health-care providers are increasingly turning to clinics similar to the one in this case to look after their insured patients. In clinics that are owned and operated by the insurance company or HMO itself, a senior provider should act as risk manager and clinical consultant for the less experienced clinicians. If there had been a senior clinician available in Ms. D’s clinic (or even by phone) to act as a consultant for returning patients, the second physician might have been alerted to the possibility of intracranial hemorrhage in patients with severe headache.

A patient returning for treatment of the same problem should be a red flag to the provider. Such a case represents an opportunity to reassess the patient and to make sure the original diagnosis was correct. With this in mind, any returning patient should receive special scrutiny.

There are distinct psychological barriers to a clinician’s changing a previous diagnosis, even if it was made by someone else. Nevertheless, the first diagnosis must be re-established by retracing the reasoning from the original test results. This will help avoid potential errors and set the patient on the right management path.