Mr. C was a 32-year-old physician assistant who worked in a Florida urgent-care facility run by a large HMO. Most of his patients treated the facility as a family practice clinic, and he enjoyed the wide variety of cases that he was called on to treat. In the back of his mind though, he always feared coming up against the wild card — a common symptom with an uncommon cause. His fears were justified by a patient with a bad headache. 

The patient was a 37-year-old female illegal immigrant from Honduras. She presented to the urgent-care facility early one morning complaining of a grievous headache, vomiting, and dizziness. The headache was constant, severe, and bilateral (but worse on the right side). The woman gave no prior history of this condition. A family practice physician diagnosed “headache, probable migraine” and prescribed Toradol (ketorolac). The patient noted some relief and was discharged with instructions to return on an as-needed basis. 

Mr. C was at work the following afternoon when the patient returned with the same complaints. Normally, his supervising physician would have seen a returning patient, but he was busy with a possible MI, so Mr. C was asked to treat her. He noted in the chart that the first injection of Toradol had given the patient several hours of relief and that she was asking for another shot. He ordered Toradol and Vistaril (hydroxyzine pamoate) and discharged her again with instructions to return on an as-needed basis. The chart showed that he had performed a neurologic exam, which was negative at that point. 

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 Later that evening, the patient returned, still complaining of severe headache. While a third provider was assessing her, she collapsed and lost consciousness. The staff at the clinic dialed 911, and within 10 minutes, paramedics were transporting the woman to a hospital emergency room. At this point, the patient was unconscious and showed lateralizing signs of a dilated right pupil. An emergency CT scan revealed an intracerebral hemorrhage in the region of the right basal ganglia, most likely the result of an arteriovenous malformation. She underwent an emergency right frontal craniotomy in the temporal area and evacuation of the hematoma. Even after extensive rehabilitation, she was permanently hemiplegic and remained wheelchair-bound except for walking short distances. She was incontinent of bowel and bladder and required around-the-clock care, according to later testimony from the plaintiff experts. 

The patient’s family immediately consulted a plaintiff lawyer to discuss the possibility of a lawsuit. Within two weeks, he had investigated the medical chart and the particulars of the case, using a plaintiff expert service. By the end of the next week, Mr. C and the other two providers working in the clinic, as well as the HMO itself, had received notice of a pending malpractice lawsuit. 

Over the next year, the case followed a familiar script. The defense lawyer’s office would call Mr. C at work, often late in the afternoon, to let him know that it was faxing over a list of questions he was required to answer and deliver to the plaintiff attorney within two days. This led to many late nights spent searching through old records and licensing files and caused considerable strain on Mr. C’s marriage. With the start of the depositions came the hope of ending the prolonged torture. 

The plaintiff experts began by testifying that the providers in the clinic should have ordered a CT scan when the patient first presented with a headache. Certainly, they theorized, Mr. C should have realized something was wrong with the original diagnosis when the patient returned to the clinic the first time. They stated that the CT scan most likely would have shown the intracerebral hemorrhage and that early stabilization followed by surgery to stop the bleeding and evacuate the hematoma would have minimized the damage to the brain and prevented further damage. The plaintiff expert neurosurgeon testified that the patient probably would have suffered no disability at all. 

The defense experts challenged this remarkable testimony by stating that a significant hemorrhage in the area of the basal ganglia will produce disability no matter how early it is detected and treated due to the deep and inaccessible nature of the injury. In any case, the defense neurologist testified, the patient’s complaints did not warrant performing a CT scan. 

 After the depositions, the defense team convened to decide whether it should try for settlement. The insurance adjuster and the lawyers reviewed the expert testimony of each side and found themselves at an impasse. There were equally credible experts testifying to opposite conclusions. Consequently, they reasoned, a jury may be equally deadlocked. They were left with the prospect of a dirt-poor, severely incapacitated immigrant confined to a wheelchair parked prominently in front of the jury. 

 “That [sight] is worth money in this jurisdiction,” said the claims adjuster as he reached for his calculator. The case was settled for a total of $3.75 million ($3.5 million from the HMO plus the $250,000 policy limit from Mr. C’s supervising physician).

Legal Theory

    Like more than 90 percent of all malpractice cases, this one was settled before it was presented to a jury. Typically, insurance adjusters will pay more than what they think the case is worth, and plaintiff lawyers will accept less than they had hoped to win at trial, in exchange for the reduction in costs and risk that settlement brings. Insurance adjusters traditionally use past experience to determine an appropriate dollar figure. The final amount of the settlement is established in large part by verdicts issued in similar cases as well as prior verdicts obtained by the plaintiff lawyer.

Risk-Management Principles

 Every family clinic and ER ought to have a “returned patient” policy in place for assessing patients whose symptoms are persistent enough to bring them back for a second visit. When treatment fails, there is always the possibility that the original diagnosis, no matter how statistically likely, is incorrect. Although studies have shown that it is difficult for providers to question the prior clinical conclusions of a colleague, doing so can help avoid situations similar to Mr. C’s. 

It is financially impractical to order CT scans on every patient with a headache, but juries seem to be impervious to this fact. This argument is especially difficult to make when plaintiff experts testify that the patient could have been “saved by a simple test” and present each case as though the provider had the luxury of infinite time and resources at his or her disposal. To thwart this attack, a clinical note along the lines of “consider CT scan” shows that the provider at least entertained the possibility but rejected it after further contemplation.