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Legal liability related to diagnostic difficulty: A case example
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Review of the fact patterns of closed claims can often yield useful insights and learning points. When possible, we will present, as below, such cases, with a listing of the legal and take-home points that can be learned from the case.
B. Sonny Bal, MD, JD, MBA; and Lawrence H. Brenner, JD
Orthopedic Medical Legal Advisor Co-Editors
A 46-year-old woman had groin and back pain and was sent to an orthopedic surgeon by her primary care physician. Relevant history showed hypertension and anorexia nervosa. Medications included an antidepressant.
Pelvic films showed non-specific osteopenia and a radiolucency in the pubic ramus. The surgeon ordered a bone scan to check for a stress fracture and opined in his note that the bone density looked abnormal and might be related to some systemic condition.
Lawrence H. Brenner
At follow-up in 2 weeks, the diagnosis of pubic and sacral stress fractures was conveyed to the patient, based on bone scan uptake. The patient said that her pain was about the same and also mentioned generalized, progressive weakness. The surgeon documented that the patient had “nonorthopedic complaints” for which she was referred back to the primary care physician (PCP), with conservative care, followed by referral to a physiatrist for therapy, ambulation and pain control recommended for the stress fractures.
Four weeks later, the patient was back in the office and said therapy was making the pain worse. Radiographs were unchanged, and a second bone scan was ordered to check for new fractures, and it was indeterminate. Two weeks later, the patient was in the ER with severe back pain; workup showed a new T6 compression fracture and she was asked to see the orthopedic surgeon again. At that visit, a thoracic brace was ordered. Clinic notes showed the patient called the office a few days later with worsening pain, but this message was not relayed since the surgeon was out that day.
Two weeks later, the patient was hospitalized elsewhere with neurologic findings related to the thoracic fracture. Emergent surgical decompression by a neurosurgeon led to the diagnosis of an adrenal tumor. The patient suffered permanent neurological deficits.
In the lawsuit that followed, the patient alleged the orthopedic surgeon had failed to timely investigate her systemic complaints. Alternatively, the surgeon had failed to tell her other doctors the urgency of pursuing further workup. Earlier diagnosis would have facilitated intervention and avoided neurological injury. After extensive pre-trial legal activity, all parties (the orthopedic surgeon, PCP and physiatrist) reached independent, confidential monetary settlements; the case never went to trial.
B. Sonny Bal
Editors’ legal analysis
This case shows a dimension to malpractice litigation that can create liability exposure for orthopedic surgeons. The above facts are typical of a class of medical malpractice litigation called diagnostic cases, where there is a failure to diagnose, or at least timely diagnose a condition. As a result, a health care benefit was denied to the patient, rather than a direct injury from misconduct. Here, for example, but for the negligence of the physicians, the patient contended that she would have had earlier diagnosis and treatment of her condition.
Rules of jurisprudence relating to diagnostic claims generally protect the physician or surgeon from unjust verdicts. Thus, failure to correctly diagnose a patient’s condition and institute timely treatment does not create a presumption of negligence. These rules reflect a traditional deference toward the complexity of making a differential diagnosis.
In the 1972 ruling Lauro v. Travelers Insurance Company, the court refused to hold a pathologist liable for incorrectly interpreting a breast malignancy. The court said that “an erroneous diagnosis resulting under these circumstances does not constitute negligence.” In Riddlesperger v. United States of America, the court said that “… a physician is not liable for an honest mistake or error of judgment in making a diagnosis… when the proper course is subject to reasonable doubt.” Author John Williamson, MD, stated in his book, Assessing and Improving Health Care Outcomes: “The practice of medicine requires a continual series of priority decisions. A large and varied range of patients, health problems and available resources must be coordinated within extremely narrow constraints of time and effort. Each patient provides a challenge as to how much data to collect, what diagnostic possibilities to consider, what therapeutic modalities to utilize, when to seek greater expertise by consultation or referral and what proportion of effort to provide to caring as opposed to curing functions.”
Despite the above observations, diagnostic cases still present practical challenges for defense attorneys. These cases are tried after the diagnosis is missed, and the patient is left with a serious injury. It is easy for the jury to view the facts from the standpoint of the injured patient, rather than considering the complexity of the diagnostic process. It is hard for defense lawyers to present the facts in real time, ie, from the vantage point of the surgeon who managed uncertainty during the diagnostic evaluation.
Another practical challenge for the defense is choosing how to litigate the case. For example, a negligence defense means asserting that the patient simply did not exhibit sufficient signs and symptoms to warrant further inquiry. A causation defense is an affirmative response by the defendant doctor that, even if the diagnosis was negligently missed, the outcome would be no different.
As a practical matter, both negligence and causation defenses are asserted simultaneously. The typical defense is that “When I examined this patient there was no reason to suspect a serious condition, and even if there was reason to suspect such a condition, the disease was already so far along that the patient would have died anyway.” Although legally correct, this scenario can risk juror confusion and conflict, such that a legally sound defense strategy may not play well before the jury.
Editors’ case analysis
The above case illustrates the diagnostic traps related to vague musculoskeletal complaints that can reflect a systemic disease. The surgeon recognized the abnormal bone density in a relatively young woman, and the possibility of systemic disease, but he made a risky assumption that other treating physicians were similarly aware, and/or had taken further investigative steps. Absent direct provider communication about the patient’s complaints and condition, such an assumption may be unwarranted.
Lack of provider communication is a common pitfall in diagnostic cases. When a serious disease process is suspected, further workup of which is deemed “nonorthopedic,” then be sure to talk directly with the other physicians, such as the PCP and document such communication. Although the management of a clinical problem may indeed be “nonorthopedic,” the recognition and perhaps even the initial diagnostic steps related to that condition may be within the reasonable scope of an orthopedic surgeon’s professional capability.
If a systemic illness, such as metabolic bone disease, malignancy, endocrine disorder, or a related condition is suspected, the surgeon should refer the patient to another specialist. Alternatively, a curious surgeon might order blood work and related testing to identify the disorder. In the above case, despite suspecting a systemic disorder, the surgeon made a referral to a physiatrist, an inappropriate step that the plaintiff argued was mainly palliative and delayed the diagnosis.
A related failure in the above case relates to defective communication within the surgeon’s own office. The patient had developed an unexplained vertebral fracture, and the surgeon should have been vigilant to be advised promptly of any further changes in the patient’s condition, even if he were away from the office. Neurological injury might have been avoided if a proper diagnostic and management plan had been implemented when the vertebral fracture was first diagnosed. These comments are easy in hindsight of course, but easy to miss in the routine, busy schedule of a clinical practice.
Learning principles
The illustrative case above leads to four risk management maxims that should help in addressing liability exposure in the so-called diagnostic cases:
Avoid unwarranted assumptions that may provide a false basis for appropriate clinical assessment of a patient’s condition. Make reasonable attempts to verify and validate assumptions that arise during the diagnostic process.
When formulating a differential diagnosis, verify and validate the accuracy of the clinical findings. Reconsider the diagnosis when it cannot be reconciled with the clinical findings. Illogical associations between clinical findings and diagnostic conclusions will cast an inference of professional incompetence.
Obtain appropriate consultation when the diagnosis is uncertain, or when the treatment based on a diagnostic assumption is ineffective, ie, the patient is not getting better. This requires purposeful monitoring of the patient’s clinical course.
Address the patient’s condition(s), reasonably within the differential diagnosis, that can cause serious harm if not timely detected and properly managed. This may call for consideration of conditions that are not orthopedic, and that require either further inquiry, or further advice and input from colleagues.
References:
Lauro v. Travelers Insurance Company, 261 So. 2d 261 (La. App. 4th Cir. 1972)
Riddleperger v. United States of America, 406 F. Supp. 617 (1976)
Williamson J. Assessing and improving health care outcomes: The health accounting approach to quality assurance. Cambridge, Mass. Ballinger, 1978.
For more information:
B. Sonny Bal, MD, JD, MBA; and Lawrence H. Brenner, JD, are partners in the law firm of BalBrenner/Orthopedic Law Center and are the exclusive providers of loss prevention, risk management and quality improvement services for the Orthopedic Physician’s Insurance Company. Brenner can be reached at lbrenner@balbrenner.com.
Disclosures: Bal and Brenner report no relevant financial disclosures.