News: After receiving a pacemaker, a patient alleged the physician and hospital made false representations and concealed facts stemming from the procedure. The patient claimed she suffered a bacterial infection and other injuries because of the negligent implantation.
The defendants denied liability and challenged the basis for the litigation, arguing the patient’s expert report failed to meet state statutory requirements. The trial court agreed and dismissed the case, but an appellate court reversed, ruling the patient’s amended report was sufficient.
Background: In May 2018, a 45-year-old woman experienced random episodes of lightheadedness, dizziness, and shortness of breath. Her primary care physician (PCP) referred her to a cardiologist. Subsequent testing returned normal results. The cardiologist asked the patient to wear a heart rate monitor. Usually, these are worn for seven days. However, after two days, the physician informed the patient her heart was “stopping” several times a day, and she urgently required a cardiac pacing device.
The patient consulted her PCP, who requested postponement of any surgery to allow for a sleep apnea test. The cardiologist would not postpone the surgery, and performed the implantation on May 21, 2018. According to the patient, the cardiologist never discussed different pacemaker devices, manufacturers, or options.
Approximately a week after the implantation, the patient developed a hematoma around the surgical site, causing bleeding. The patient sought treatment from the same cardiologist, who then cleaned and redressed the incision. One day later, the patient returned to the cardiologist, complaining of chills, weakness, and uncontrollable shaking. The cardiologist diagnosed her with an infection and admitted her to the hospital. On June 1, 2018, the cardiologist moved the pacemaker from her left side to her right side.
Following this second procedure, the patient developed gastrointestinal symptoms, which she complained about at multiple follow-up appointments. The cardiologist did not diagnose her with any condition or treat the gastrointestinal symptoms. On July 5, 2018, the patient’s PCP diagnosed her with Clostridioides difficile and prescribed medication.
Six months later, the patient’s pacemaker showed extremely low usage, and the cardiologist reduced the setting. One year later, the patient’s pacemaker showed nearly no usage. The patient sought second and third opinions from other physicians, who stated the patient did not need a pacemaker. The pacemaker was removed in June 2020.
In May 2020, the patient filed a malpractice action against the cardiologist, hospital, and the physician’s practice groups. As part of the filing, the state requires the patient to submit a physician expert report. The defendants objected to the patient’s report, and the trial court agreed the report was deficient. The trial court allowed the patient 30 days to submit an amended report.
The patient submitted an amended report that addressed the deficiencies. However, the trial court dismissed the hospital.
On appeal, the court found the amended report satisfied the state’s statutory requirements by explaining the expert’s opinion on the conduct in question. The appellate court noted the hospital did not file new objections to the amended report, and it superseded the original deficient report. The justices confirmed the amended report addressed each defendant physician and care provider, setting out the standard of care, the breach, and the causal relationship. Furthermore, the court ruled when a provider’s liability is precarious, it is sufficient for the report to meet the standards as to the agent or employee. The justices determined the amended report sufficiently summarized the expert’s opinions applied to all defendants; thus, it was improper for the trial court to dismiss the hospital.
What this means to you: This case presents a common cause of malpractice actions: The failure to timely diagnose and treat a condition. Here, the patient suffered from a bacterial infection after the pacemaker was moved. Despite multiple follow-up appointments and complaints about gastrointestinal symptoms, the cardiologist failed to timely diagnose the patient’s infection, and failed to provide any treatment. Only when the patient saw her PCP was she correctly diagnosed and treated.
It is not uncommon for a surgeon to refer a patient to a specialist when the patient develops symptoms of a problem, such as an infection, not directly related to the surgery performed. This patient’s C. difficile infection was not directly related to the pacemaker implantation. C. difficile is a gastrointestinal organism, usually seen in patients who have undergone treatment with heavy doses or multiple different types of antibiotics, or have contracted the infection from poor infection control or hygienic practices at the hospital. In this case, the surgeon did not refer the patient to either a gastroenterologist or an epidemiologist for treatment.
A failure to diagnose, treat, or refer a patient to a specialist when another physician in the same or similar circumstances would have done so can constitute medical malpractice. Providers should openly and actively listen to a patient’s complaints and symptoms, since those are critical to accurate diagnosis. In this case, the cardiologist did not appear to offer an explanation for overlooking the patient’s complaints and symptoms after the second procedure; he might have been focused solely on the pacemaker rather than the patient’s overall condition. Such a narrow focus can be improper, particularly when a patient is actively complaining following surgery. There is no indication the infection was the result of malpractice, but the source of the litigation was the defendants’ failure to treat the infection or refer to another physician when the infection was or should have been clear.
Similarly, another major source of this litigation is the allegation the patient did not even need the pacemaker. While the heart monitoring apparently revealed the patient’s heart “stopped” several times a day, it is unclear whether the cardiologist explored alternate possible causes or different treatment methods. Instead, the cardiologist jumped straight to implanting the pacemaker, which caused significant negative complications for the patient. There are many possible causes, including a defect in the monitor itself, that should have been considered before insisting on a pacemaker.
Whether the pacemaker was necessary will surely be up for debate when this litigation proceeds on the merits. But the defendant will have a difficult time explaining the lack of informed consent. According to the patient, the cardiologist never discussed different pacemaker devices, manufacturers, or options before proceeding. Patients have the right to make fully informed decisions, and a failure to provide sufficient detailed information can constitute malpractice.
Finally, a lesson specific to employers arises from this litigation: Employers must be cautious about vicarious liability, whereby a patient can pursue the employer for the actions of the employee. Depending on several factors, physicians, staff, and other direct healthcare professionals might be classified as employees or as independent contractors.
It is important for hospitals, surgical centers, practice groups, and others to know how individuals are classified to understand potential liability, among other important legal implications. If a hospital’s staff fails to adhere to the standard of care, the hospital likely will be liable under vicarious liability. However, if a hospital contracts with independent physicians, and a physician engages in malpractice, the hospital may be able to preclude liability since the physician is not an employee. This analysis is far from black and white, and it is important for care providers, both individuals and entities alike, to understand their responsibilities and liabilities regarding employment or independent contracting. Only when this fundamental premise is understood can risks be fully and properly managed.
REFERENCE
- Decided May 9, 2022, in the Court of Appeals, Seventh District of Texas at Amarillo, Case Number 07-21-00125-CV.
This case presents a common cause of malpractice actions: The failure to timely diagnose and treat a condition.
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