A congenital heart defect complicates a young dad’s diagnosis when he suffers a respiratory infection.

Longtime business partners, Drs. A and B considered the period between 1970 and 1990 to be the golden age of American medicine. The practice of medicine has changed since then, though, and they looked forward to retiring. But a malpractice suit over a missed diagnosis of subacute bacterial endocarditis (SBE) delayed their plans.

The patient was a 22-year-old man on total and permanent disability for his severe uncorrected congenital heart disease (CHD) in the form of tetralogy of Fallot. He visited Dr. A and complained that he had not been feeling well for the past several days. His illness had come on gradually and was characterized by cough, fever, and night sweats.


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The man mentioned that because of the pulmonary congestion associated with his CHD, he was susceptible to respiratory infections. Dr. A examined him and diagnosed a probable upper respiratory infection (URI) with some spread to the lower airway. He prescribed symptomatic treatment, holding antibiotics in reserve for a possible later complication.

The patient called the office several days later to report that he felt no better. The office nurse reviewed his chart, consulted with Dr. B, and advised the man to come in if he did not improve in two days. Two days later, the young man appeared in the clinic, stating that he was not doing better and demanding that something be done.

Dr. B examined him but found only some nasal congestion, a red throat, and the usual cardiac murmurs associated with the patient’s heart condition. He advised the man to continue the symptomatic treatment prescribed and started him on a course of antibiotics for his red throat. Asked if he had seen his cardiologist recently, the patient said no. Dr. B then recommended he schedule an appointment as soon as possible and noted this advice in the chart.

Unfortunately, the man never made that appointment and wound up in the emergency department (ED) the next day. The ED physician examined him and ordered tests, including a blood culture for persistent low-grade fever.

Two days later, the hospital informed the patient that the blood cultures were positive for Streptococcus viridans and advised him to make an appointment to see his cardiologist. This time, he did as he was told.

The cardiologist admitted him to the hospital and started him on high-dose antibiotics. But after a two-week hospital stay, the young man died of congestive heart failure.

His family sought out a plaintiff’s lawyer to look into the cause of death. An expert internist reviewed the chart and blamed Drs. A and B for missing an obvious diagnosis of SBE. Upon receiving this opinion, the plaintiff’s lawyer filed a malpractice suit against the two clinicians, who now faced a double tragedy: the death of a patient and a malpractice lawsuit blaming them for it.

The patient’s wife was the first person to testify at the deposition. She said that her husband’s illness had taken a gradual downhill course and that “no one did anything for him.” That neglect resulted in a missed diagnosis, which led to his death, she alleged. The young widow also said that she didn’t know how she and her 3-year-old son would survive, as they had been living on her husband’s disability benefits.

Next, Dr. B testified that he had advised the patient to see his cardiologist. When Dr. B pointed to the relevant entry in the chart, the plaintiff’s lawyer asked, “Did you make it clear that the situation was urgent? How did you follow up to make sure that he made this appointment and kept it?”

Six months after the deposition, when the case went to trial, the jurors sat stone-faced and silent as they listened to the lawyers outline their cases. The plaintiff’s lawyer first explained that patients with CHD are very susceptible to SBE.

Clinicians faced with such patients should take special care and order extra tests to ensure that the URI symptoms are not something more sinister. He blamed the patient’s death on the physicians’ failure to diagnose SBE and insufficient follow-up.

The defense lawyer emphasized the difficulty of making such an elusive diagnosis and the patient’s short life expectancy (even if the SBE had been recognized earlier and effectively treated). He noted that the cardiologist had admitted that the diagnosis was made “almost by accident.” Drs. A and B testified in their own defense, with Dr. B pointing to his documented recommendation that the patient see his cardiologist and to the patient’s failure to comply.

But in the end, it was the widow’s testimony that she and her young son were now alone in the world that proved most effective with the jury. It returned a $1.5-million verdict against Drs. A and B for wrongful death, loss of services, and mental anguish, forcing them to put their retirement plans on hold.

Legal background

Jurors are charged with finding evidence of negligence before they proceed to assessing damages. But the powerful emotional testimony of the young widow in this case tempted them to omit or minimize the liability question and simply award the needy family some money.

Although all the experts in this case agreed that the diagnosis of SBE was difficult and elusive, the jury primarily heard the family’s tale and acted with compassion rather than according to the rigors of the law. Such an approach has become increasingly common in some communities and has led to a shortage of medical services as providers beat a hasty retreat to more physician-friendly areas.

Protecting yourself

Patients with complex disease patterns or multiple chronic conditions are increasingly common and present a higher level of risk, as well as greater difficulty in medical management. Experienced clinicians can discern when a patient is sicker than the diagnosis might suggest. When this professional intuition is triggered, clinicians should heed it and confer with a colleague or a specialist. Consultation is an underutilized risk-management tool that can bring another pair of experienced eyes to an ambiguous situation.

Dr. B appropriately noted in the chart his recommendation that the patient see his cardiologist. This usually effective risk- management strategy failed here because the jury overlooked it in favor of the sympathy appeal of the family situation. In general, however, such a chart entry would be accepted as an indication of adequate medical care and result in an acquittal for the physician, even if the patient failed to make the recommended appointment.