Gallbladder disease was most likely, but should a cardiologist have been consulted anyway?

At age 43, Ms. F had reached a pleasant plateau in her professional life as a nurse practitioner. She had earned her master’s degree 13 years earlier and had worked at various jobs for five years before settling into the community clinic where she found her niche. She enjoyed respect from the staff, professional autonomy, and physician support when she wanted it. Then, a woman with epigastric pain disrupted her equanimity.

The 40-year-old patient was overweight and came to the clinic complaining of sharp, randomly timed pains that lasted a few minutes. She couldn’t say what relieved it or what made it worse. Occasionally, the pain radiated around her right side to the tip of the right shoulder blade, but it usually remained in the epigastric region and was accompanied by nausea.

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As was her custom with any diagnostic or treatment problem, Ms. F consulted her supervising physician. He agreed that the pain could be gastric or even cardiac in origin, but in view of the way the pain radiated and the patient’s overweight physique, it was probably caused by cholecystitis.

In the malpractice suit that followed, the plaintiff’s attorney would stress that the differential diagnosis failed to mention coronary artery disease (CAD). However, Ms. F’s testimony about her thought processes made it evident that CAD had been considered.

Ms. F returned to the examination room and took a risk-factor history for gallstones and cardiac problems. The woman said she had no relatives with coronary problems, but she did have a sister who had had gallbladder “attacks” similar to her pains. She reported no history of hypertension and did not know what the lipid results had been at her last physical.

At the end of the visit, Ms. F ordered an ultrasound of the gallbladder, which was scheduled for the following week. The patient did not keep the appointment, and the ultrasound department did not call her to reschedule. Seven weeks later, she died suddenly of a cardiac arrest. The woman’s family soon engaged a plaintiff’s lawyer who advertised that he could “find out what really happened.”

The lawyer called for the chart and had it reviewed by an expert internist, who concluded that Ms. F should have referred the patient to a cardiologist. Had she done so, the expert said, the hidden cardiac disease would have been detected. It could have been treated effectively, and the patient would not have died. The problem with that theory, Ms. F later noted grimly, was that the patient’s demise was probably a sudden cardiac death caused by arrhythmia. Therefore, it was intrinsically unpredictable.

Armed with the expert’s report, the plaintiff’s lawyer filed a malpractice suit against Ms. F and her supervising physician. As they reviewed the chart together, the doctor assured Ms. F that they had handled the case “very reasonably.”

Depositions were finally scheduled after two years of litigation. The patient’s two adult children testified that they were very close to their mother. They recalled that in discussing her pain, their mother had said “she thought it was [her] heart,” but Ms. F had told her otherwise.

Ms. F testified next. She did not remember the patient’s suggesting a cardiac source for her pain. She described requesting a gallbladder ultrasound and explained it was “not clinic policy to chase patients for follow-up” if an appointment was missed. When the plaintiff’s lawyer asked the reason for that policy, Ms. F guessed it was a lack of resources: “Phone calls cost time and money, and we don’t have either,” she said.

After Ms. F’s deposition, the experts gave their opinions. The plaintiff’s expert internist asserted that epigastric pain was “typical of inferior ischemia” and indicated referral to a cardiologist, while the defense expert testified that the pattern of the patient’s pain was more suggestive of gallbladder disease. He said the woman died of sudden cardiac death syndrome caused by arrhythmia, which is usually unpredictable.

With the depositions complete, the attorneys tried to negotiate a settlement but failed. The plaintiff’s lawyer demanded $2 million, while the insurance company offered $100,000.

When the case went to trial, the lawyers presented their witnesses, made their final presentations, and waited for a verdict. After three days of deliberation, the jury was unable to reach the unanimous decision that state law required.

The judge declared a “hung jury,” dismissed the jurors, and ordered a new trial. All the witnesses repeated their previous testimony, and the lawyers repeated their arguments. This time, the jury reached a unanimous verdict in favor of Ms. F and her supervising physician.

Legal background

As a result of the tidal wave of litigation that has overwhelmed the courts and the increasing reluctance of citizens to serve on juries, the American legal system is in a state of flux with regard to the size and the requirement for unanimity of juries in civil cases. While some states require a 12-member panel to unanimously agree on a verdict—as is traditional in criminal matters—more states are allowing six- or eight-person juries to hear civil cases.

Some states permit a three-quarters majority to decide the verdict. The jury is still out on the success of these reforms as fact-finding mechanisms, especially since so many trials involve complex technical information. But in this case, a smaller jury or a less-than-unanimous verdict would have produced the same result after the first trial: a victory for Ms F.

Protecting yourself

The judicious use of consultation is an important tool for risk management. Consults may consist of referring a patient to a specialist, or they may be an informal conversation with a colleague, physician, or specialist. Juries appreciate consultations, even if they are short and informal, because they indicate providers have taken an extra step when they are not completely comfortable with the clinical picture.

The brief consultation Ms. F had with her supervising physician was not at legal issue in the courtroom. But jurors later said that it showed Ms. F was a caring, competent, compassionate provider, and that assessment played an important part in their deliberations.

CAD is so common that it must be included in any differential diagnosis of chest or upper abdominal pain, even if the characteristics of a symptomatic pain suggest another cause. In this case, Ms. F was able to explain to the jury that, although CAD was not listed on the chart as a differential, she had included it in her “mental list.” The litigation might have been avoided altogether had the chart entry explicitly included CAD as well as upper abdominal conditions, such as gallbladder problems, and gastric conditions, such as gastroesophageal reflux.