Seemingly stable after transient ischemic attacks, a patient was actually just days away from disaster.

Mr. G, 54, was an experienced physician assistant in a small family practice. Most of his patients in this rural clinic were retired and elderly, so his caseload had a high proportion of cardiovascular disease. One of these established patients—a 54-year-old man with coronary artery disease who presented with an apparent transient ischemic attack (TIA)—involved him in a malpractice suit.

Mr. F was on medication for his condition. One day, he came to the office complaining that he had lost vision in his right eye for about 10 seconds. He also reported dizziness and headache that had lasted for several hours.

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Mr. G was very familiar with the clinical presentations of carotid disease in older patients, so he began to ask questions. He learned that multiple TIA episodes had occurred over several months culminating in this one, which was so severe it frightened Mr. F into making an appointment.

At this point, Mr. G was faced with a judgment call. He recognized the vision loss as a precursor to a stroke but was unsure about how urgent the presentation was. After all, Mr. F had experienced several previous episodes and seemed to be stable.

Mr. G consulted his supervising physician, who recommended scheduling Mr. F for a CT scan and asking him to return to the clinic in a week. Three days later, while awaiting his CT appointment, Mr. F had a massive stroke that impaired his speech and paralyzed the left side of his body.

When his wife received the hospital bill for Mr. F’s admission and initial rehabilitation, she called a plaintiff’s lawyer. He called for the chart and had it reviewed by an expert internist who criticized Mr. G for not sending the patient straight to the emergency department (ED) for rapid diagnosis and treatment. Armed with the expert’s report, the plaintiff’s lawyer immediately filed suit, launching a case that would cast a pall over Mr. G’s life for the next two years as it wended its way through the legal system.

When the case reached the deposition stage, Mr. F was too incapacitated to participate, but his wife gave her version of events. “Mr. G told us, ‘Don’t worry; he’ll be all right.’ So we followed his instructions and waited for the CT scan,” Mrs. F recalled.

When it was his turn to testify, Mr. G insisted he would never say such a thing to a patient. Mr. G went through the chart and reconstructed the visit from his notes. Although he could not remember exactly what he had said about the urgency of scheduling the CT, he was sure it had not been “Don’t worry.”

Medical experts for each side were deposed next, giving diametrically opposed opinions about how Mr. G had managed the case. The plaintiff’s expert asserted that Mr. F had presented with a medical emergency and should have been sent straight to the hospital; the defense expert insisted that the elective approach had been appropriate in view of the man’s apparently stable situation.

The plaintiff’s lawyer then presented two more experts: a “forensic economist” and a “life-planning expert.” They described the care Mr. F now required, predicted how much it would cost, and estimated how much Mr. F would lose in lifetime wages because of the stroke. These experts were to prove persuasive before the jury.

At trial, the plaintiff’s lawyer first called Mrs. F, who re-counted her sad story while her husband sat drooling in a wheelchair parked strategically in front of the jury box. She was followed by an army of experts, who buttressed the multiple economic aspects of the patient’s case: a medical expert who established liability; a life planner who predicted Mr. F’s future medical needs; and an economic expert who came up with an appropriate amount for compensation ($2 million).

The defense lawyer had to counter the sympathy-inducing testimony. He called Mr. G, who systematically presented the case as he saw it: a stable but threatening situation in which the patient just had “bad luck.” The plaintiff’s lawyer’s cross-examination was unmerciful. “Your careless attitude cost my client his health and mobility,” he shouted at Mr. G.

The jury stared at the broken-down stroke victim, and sympathy won out. They awarded Mr. F and his family $2.3 million, based upon the expert’s estimate of lost income and costs of future care.

Legal background

A winning lawyer, like a good football coach, has a roster of good players on his team, any of whom can be called on at the right moment to make the play that wins the game. Every litigator, whether for the plaintiff or the defense, needs a stable of experts willing to play the litigation game and shade their testimony to support the case being presented. This is especially evident nowadays, in this era of tort reform. Unlike lost wages, pain and suffering cannot be quantified. As a result, most states limit these “noneconomic damages” to $250,000, significantly less than the million-dollar verdicts plaintiff’s lawyers used to be accustomed to.

These damage caps have created a cottage industry for experts who can present evidence in a wide array of disciplines. Economic damages have no arbitrary cap because they can be determined by actual, documented needs and losses. Hence an army of specialists is needed to testify about medical expenses, personal-care expenses, lost wages, and the like. These witnesses estimate the plaintiff’s probable life expectancy and then project these expenses into the future.

Proving economic damages can yield the sort of numbers plaintiff’s lawyers are used to, but sometimes it’s not necessary, as was the case here. Although his lawyer’s strategy relied on the team of experts (medical, life-care, and economic), in the end, it was sympathy for Mr. F that won the large verdict.

Protecting yourself

This lawsuit represents the leading edge in a new type of malpractice allegation: the “delay of urgent treatment.” It means the time may have come to review your triage procedures.

Unstable cerebrovascular conditions are particularly difficult to deal with because their course is so hard to predict and a mistake can be so devastating. The advent of tissue plasminogen activator (tPA) to treat cerebrovascular thrombosis and thromboembolism has raised the stakes in these situations. The four-hour window of opportunity to administer tPA effectively places considerable pressure on the triage function, both in the ED and at the provider’s office, to yield the right decisions.

Although the cause of action here is novel, the remedy is not. Consultation remains among the most effective risk-management tools, as specialists are able to recommend an optimal course for individual patients.

In this case, a telephone conversation with a cardiologist or vascular surgeon would have produced a rapid investigation of Mr. F’s TIAs and yielded a more accurate assessment of the risks of waiting for the CT scan vs. immediate angiography and treatment.

Dr. Starr is a retired physician and lawyer in the Austin, Tex., area. His legal practice included defending clinicians in malpractice litigation.