Judge Rejects Defendant’s Bid to Dismiss Failed Diagnosis Suit
April 1, 2022 5 minutes read
News: An appeals court denied a hospital’s bid to dismiss a malpractice suit alleging failed diagnosis. The patient’s wife contended doctors failed to diagnose her husband with necrotizing pancreatitis, which lead to his death.
In August 2017, a man arrived at the hospital with complaints of abdominal pain. He was diagnosed with pancreatitis without necrosis or inflammation; however, providers did not perform further tests to confirm the absence of necrosis. Additionally, CT scans revealed lung abnormalities consistent with necrosis. After a month of treatment, the patient was transferred to a different facility for long-term care. The day he arrived, he suffered a heart attack and passed away.
The patient’s wife argued the hospital failed to properly monitor her husband, stating he would have survived had he received the proper diagnosis and treatment. The plaintiff also claimed if the hospital had put proper policies, procedures, and training in place for treatment of recurrent acute pancreatitis, the proper diagnostic testing would have been performed and would have revealed necrotizing pancreatitis, which would have led to appropriate treatment, such as closer monitoring of lung function and ICU care, if needed.
The plaintiff’s expert witness submitted a report supporting these contentions. The hospital objected to the report, claiming it did not establish the expert was qualified to offer opinions against the hospital, and the expert failed to provide a fair summary of the standard of care or explain how the hospital breached that standard of care when treating the patient. The hospital moved to exclude the plaintiff’s expert and dismiss the suit. The trial court denied that motion, leading to the appeal. The appellate court upheld the trial court’s ruling.
Background: On Aug. 31, 2017, a man arrived at the hospital complaining of abdominal pain. He had experienced pancreatitis in the past, but described his pain as “different” from previous episodes. Following CT scans and X-rays, the patient was diagnosed with pancreatitis without necrosis or inflammation. However, due to an underlying kidney condition, the patient did not receive CT scan with contrast or MRI with contrast, both of which would have confirmed the presence or absence of necrosis. The patient’s X-rays revealed lung abnormalities consistent with necrotizing pancreatitis. The patient remained in the hospital for nearly a month.
Although the patient was seen by a pulmonologist, no formal evaluation of the lungs with a chest CT scan was performed. On Sept. 26, 2017, the patient was discharged to a different facility for long-term care. The same day he was discharged, he suffered an acute heart attack and passed away.
The patient’s wife filed a malpractice lawsuit, alleging the hospital failed to properly monitor her husband, including failure to monitor his lungs. The plaintiff also maintained the patient could have received proper diagnosis and treatment had the hospital implemented policies and procedures for diagnosing and treating recurrent pancreatitis.
During litigation, the plaintiff retained an expert witness who submitted a report supporting the plaintiff’s claims. The defendant hospital objected to the report, claiming the expert was not qualified to opine on the hospital’s policies and procedures. The defendant also argued the expert’s report did not identify the standard of care and how the hospital or its employees breached it.
The appeals court disagreed, affirming the trial court’s finding the expert’s extensive experience in medicine and teaching, as well as experience in specific circumstances of diagnosing rare conditions that do not normally appear on imaging, qualified the expert to speak about the policies and standard of care at the hospital.
The expert identified a safer alternative to a CT scan with IV contrast that could have confirmed whether the patient had necrotizing pancreatitis, and added the kidney failure that prevented the use of contrast was itself a clue to his condition. The report also contained an extensive list of how the hospital allegedly breached the standard of care. The expert contended the hospital failed to act as an effective advocate for the patient by failing to implement a proper treatment plan and failing to confirm whether the pancreatitis was necrotizing.
What this means to you: This case illustrates a hospital’s standard of care and the standards for subsequent expert witness reports that address this standard of care.
The plaintiff’s expert noted the CT scan could not exclude necrotizing pancreatitis because it was performed without contrast. Since no contrast was used, the possibility of necrotizing pancreatitis was not excluded by the scan. Any presumption the pancreatitis was not of the necrotizing type was a guess, not a finding of the scan obtained. The failure to exclude necrotizing pancreatitis seriously affected both the quality of care and the outcome of the patient’s pancreatitis. The expert witness recognized that CT contrast could not be used because of the condition of the patient’s kidneys, but the expert witness stated a safer alternative was available. The witness also noted none of these alternatives were used appropriately to diagnose the severity of the patient’s pancreatitis and its complications. The report also indicated the patient’s acute kidney injury and renal failure were clues for necrotizing pancreatitis.
The standard of care requires the hospital to maintain policies and procedures guiding the medical care of patients, including continuous quality improvement meetings. The standard of care also requires the hospital to maintain protocols regarding discharge and safeguards to ensure a patient requiring multiple disciplines of care has received all necessary care before discharge. The standard of care here included receiving appropriate diagnostic testing to ensure the pancreatitis was not necrotizing. Because of this breach, the doctors ignored evidence showing the patient’s lungs were abnormal. As a result, the patient did not receive proper care to monitor and ensure his lung function. The patient did not receive appropriate ICU care and was discharged prematurely.
The standards of care the hospital breached include:
- Failure to discuss with medical providers the rationale for discharging an unstable patient;
- Failure to act as the patient’s advocate;
- Failing to implement a proper and appropriate treatment plan;
- Failing to coordinate medical care and treatment between its various physicians and medical staff to address the patient’s recurrent symptoms;
- Failing to institute and oversee appropriate policies and procedures to prevent these injuries and damages;
- Failing to require proof of whether the pancreas is necrotizing;
- Failing to provide adequate training, testing, and retaining to physicians and medical staff;
- Failure to properly oversee, train, and supervise physicians and other medical providers who treated the patient.
To avoid liability regarding standard of care, a hospital must ensure they are following the above listed protocols. They are vital in ensuring the health and safety of the patient as well as the continued success of the hospital.
Finally, note the patient’s studies were inconclusive because his kidney condition prevented tests with IV contrast. That is not in dispute. What is in dispute is what happens next. Expert physicians serve an important function in court, but what about those expert physicians available to assist colleagues with difficult cases before something catastrophic happens? Many times, we see physicians hanging themselves out to dry alone as they struggle to defend their actions when they could, with confidence, consult with an expert in the disease or injury they are treating. Just because the answers seem obscure and out of reach to a physician, the ability to pick up a phone or send an email and find the right expert to consult seems even more out of reach to physicians. Why? It should be their first move, not their last, and internal policies designed to incentivize such practices are strongly recommended.
REFERENCE
- Decided Jan. 24, 2022, in the Court of Appeals, Fifth District of Texas, case number 05-21-00039-CV.
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