When a sinus infection wreaks havoc on a patient, a PA’s medical judgment means little to laymen.

As a physician assistant in a small family practice, Ms. A, 42, was sometimes the only clinician available. Such was the case when Mrs. Z came to see her regular physician, Dr. L, and was treated by Ms. A instead.

The patient, a woman in her mid-50s, presented with severe headaches and nasal discharge. Ms. A prescribed intranasal steroids to treat the symptoms and advised Mrs. Z to return in a week for additional tests.

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Five days later, Mrs. Z began exhibiting neurologic symptoms, including facial drooping and disorientation. She was rushed to the emergency department of the local hospital where a CT scan revealed a brain abscess caused by sinus infection. Mrs. Z was flown to another hospital for emergency surgery to remove a portion of her skull. But after the operation, she experienced respiratory distress and had to be put on a ventilator. More surgery followed, and part of Mrs. Z’s skull was eventually replaced with plastic.

The ordeal left Mrs. Z seriously and permanently impaired. She lost all peripheral vision on her left side and suffered nerve damage to her right leg. Because of balance problems, she had to undergo rehabilitation to learn how to walk again. She was unable to regulate her emotions, manage complex cognitive thinking, and perform many functions of daily life.

Mrs. Z and her husband believed the entire nightmare could have been prevented had she received adequate care from Ms. A at the outset. A plaintiff’s attorney agreed and filed a malpractice suit on their behalf against Ms. A and the two supervising physicians, Dr. L, and her partner, Dr. J.

The case began with the two sides exchanging relevant documents. During this “discovery phase,” the doctors gave copies of their practice agreement and similar papers to the plaintiff.Next, depositions were taken from all the parties and experts witnesses, followed by negotiations to settle out of court. Those talks failed.

The subsequent trial lasted eight days. The plaintiff’s experts testified that Ms. A should have recognized Mrs. Z’s symptoms as a sinus infection and prescribed antibiotics. The steroids she prescribed instead served only to mask and exacerbate the underlying problem, they said.

The plaintiff’s attorney also submitted the physicians’ practice agreement, which specified that either Dr. L or Dr. J would see every patient Ms. A treated. The doctors should be held liable for Mrs. Z’s condition, the attorney argued, because they failed to follow their own rules.

The defense experts testified that headache and runny nose could indicate various conditions, not all of which require antibiotics, and that Ms. A acted properly in suggesting tests if Mrs. Z didn’t improve in a week. The experts also contended that there was no way to reasonably predict a brain abscess would develop, based on Mrs. Z’s symptoms. After five hours of deliberations, the jury found for the plaintiffs and awarded $3 million to the couple.

Legal background

Failure to diagnose accounts for about 40% of all medical malpractice lawsuits. In this case, the jury found that Ms. A’s failure led to Mrs. Z’s impairment and the financial burdens of extensive medical and rehabilitation costs.

The jury found the two physicians liable because they violated their own practice protocol, which stated that they would see every patient treated by their PA. No state requires such strict supervision.

Protecting yourself

This case is both interesting and disturbing. Was Ms. A wrong in not diagnosing sinusitis? The jury thought so. However, in the absence of additional symptoms, headache and runny nose can be signs of other conditions. According to Ms. A’s clinical notes, Mrs. Z did not have a fever—a typical sign of an infection—nor did she complain of eye or cheek pain, common symptoms of sinusitis.

Even if Ms. A had recognized Mrs. Z’s condition as a sinus infection, was she wrong in her treatment? Again, the jury thought so. The plaintiff’s attorneys made much of the fact that Ms. A had not prescribed antibiotics, but would that have been good medicine?

The defense’s argument was that Ms. A’s “watch and wait” attitude was appropriate. If the patient’s condition didn’t improve, she was to return in a week for tests. The likelihood of a sinus infection spreading to the brain in such a short time was so rare that it was unreasonable to expect Ms. A to anticipate it.

Ms. A might have protected herself by calling the patient after a day or two. Had there been no improvement, Ms. A might then have considered antibiotics. While it is unknown whether that would have prevented Mrs. Z’s tragedy, a jury might have been persuaded that Ms. A had done all that could be expected under the circumstances.

In addition, the plaintiff’s attorneys argued that had Mrs. Z also been seen by one of the two supervising physicians, everything would have turned out differently. However, both doctors completely stood behind their PA, reiterating several times that they believed she had treated Mrs. Z adequately and appropriately. Moreover, Dr. L and Dr. J pointed out, their malpractice insurance carrier agreed that Ms. A had handled the case properly.

These physicians could have protected themselves with a more workable protocol for supervising Ms. A. Clearly, it is impossible—or at the very least impractical—for physicians always to be available to each patient. Isn’t that the reason to hire a PA in the first place?Had their practice agreement stated that they would review Ms. A’s files at the end of each week or that they would have a weekly meeting to discuss patients with Ms. A, they might have avoided this suit. Instead, they set an unreasonable requirement for themselves and were found liable when they were unable to follow through.

Cases such as this usually are settled before trial. Insurance companies, in particular, will generally seek to resolve cases out of court if possible. In this case, the insurance carrier, like the physicians, supported Ms. A’s professionalism as a PA and maintained that Mrs. Z’s situation was an unavoidable tragedy that could not have been foreseen.

While it’s very hard to protect against unpredictable adverse outcomes, it’s generally not a good strategy to insist on a trial when the patient can make a strong emotional appeal to a jury. Even under the best of circumstances, when you have a sympathetic patient with life-altering injuries, the likelihood is great that a jury will be swayed by empathy.

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