Woman who dies from pneumonia as result of misdiagnosis awarded nearly $2 million
By Jonathan D. Rubin, Esq., Partner, Kaufman Borgeest & Ryan, New York, NY
Justin V. Buscher, Esq., Associate<, Kaufman Borgeest & Ryan, Garden City, NY
Bruce Cohn, JD, MPH, Vice President, Risk Management and Legal Affairs, Winthrop University Hospital, Mineola, NY
News: In 2009, a 25-year-old female who was 28 weeks pregnant presented to the emergency department of a hospital in Philadelphia with complaints of fever, cough, and shortness of breath. The treating obstetrician diagnosed her with bronchitis, and she was discharged on antibiotics. Just two days later, she presented to the hospital again. A chest X-ray was ordered revealing pneumonia. The plaintiff was admitted and treated for the pneumonia, but her lung condition continued to worsen. She slipped into a coma and died about two weeks later. An emergency caesarian section was performed, and the baby survived. The patient’s estate sued the obstetrician and alleged that a chest X-ray should have been ordered upon her initial presentation because she had the signs and symptoms of pneumonia at that time and the condition can be particularly harmful to a pregnant woman. The jury concluded that the patient would have had a substantially increased chance of survival if she had been timely diagnosed and awarded the estate nearly $2 million in damages.
Background: In 2009, a 25-year-old female who was 28 weeks pregnant presented to the emergency department of a hospital with complaints of fever, cough, dehydration, inability to eat, diarrhea, shortness of breath, and difficulty breathing. She was seen by an emergency medicine resident and an obstetrician, who performed a physical examination and diagnosed the patient with a viral syndrome, possibly bronchitis. She was treated with IV fluids and discharged on antibiotics.
The patient’s condition failed to improve, and she returned to the hospital just two days later. A chest X-ray was performed that revealed pneumonia in both of the patient’s lungs. Although she was treated with IV fluids and antibiotics, her lung condition continued to deteriorate. She was intubated and put on a ventilator. She eventually slipped into a coma, and an emergency caesarian section had to be performed. The doctors successfully delivered a healthy baby girl, weighing just two and one-half pounds. However, the mother went on to suffer a collapsed lung and was treated for acute respiratory distress syndrome and a whole body infection: sepsis. She died of bilateral pneumonia about two weeks later.
The patient’s estate sued the treating emergency medicine resident, the obstetrician, and the hospital, and the lawyers argued that a chest X-ray should have been ordered during the initial visit to the emergency department and the patient should have been admitted for observation. Plaintiff’s counsel contended that had a chest X-ray been performed and had the plaintiff admitted upon the initial presentation, the patient’s pneumonia would have been diagnosed and timely treated, thereby preventing the patient’s death. The case was dismissed against the hospital, as well as the first-year emergency medicine resident because he did not have authority to order an X-ray or admit a patient.
Plaintiff’s experts testified that pregnant women are more susceptible to pneumonia and at greater risk of suffering related complications. Therefore, they contended, that timely diagnosis and treatment is critical. The experts opined that the obstetrician should have ordered a chest X-ray and admitted the patient during the initial emergency department visit because she was exhibiting the signs and symptoms of pneumonia. Indeed, the obstetrician had a differential diagnosis of bronchitis, the flu, and pneumonia upon the initial presentation. Therefore, sending the patient home on antibiotics did not conform to the standard of care for treating a pregnant woman with pneumonia. The experts concluded that had the doctor ordered appropriate testing at that time, her opportunity for survival would have substantially increased.
The defendant’s expert, on the other hand, argued that the patient did not have all the signs of pneumonia and therefore sending the patient home on antibiotics was an appropriate medical recommendation. The expert further opined that even had the obstetrician ordered an X-ray and treated the patient for pneumonia upon her initial presentation, she would have died anyway due to the severity of her condition. The defense also presented an infection diseases expert who suggested that the patient may have died on H1N1, but this argument was refuted because repeated tests for the disease were negative.
The jury agreed with the plaintiff’s position and awarded the estate $1.8 million in damages for her two days of pain and suffering, future lost earnings capacity, and loss of household and parental services. An additional $121,000 was awarded for past medical expenses. Although the patient’s work history was limited and she was not employed at the time of her death, her counsel presented evidence that she was in the process of earning her GED and had plans on working at a daycare center. The defense maintained that the loss of economic loss was speculative based upon the limited evidence and work history. Ultimately, a basis of $1.5 million to $1.7 million was presented to the jury for the patient’s economic loss, including past and future lost earnings and loss of household and parental services. The patient is survived by her two children, ages 4 and 7 at the time of trial.
What this means to you: This case is similar to many others involving evaluation of patients in an emergency department. Under the best of circumstances, the emergency encounter is limited in scope and time. Even with a thorough workup in a physician’s office, things get missed.
This 28-year-old woman was 28 weeks pregnant and presented with complaints of fever, cough, dehydration, loss of appetite, etc. This is a long litany of symptoms that might have triggered a higher index of suspicion on the part of the providers. What is also interesting about the case is that an emergency medicine resident and an obstetrician saw the patient. An emergency medicine attending would likely have ordered an X-ray given the extent of the patient’s symptoms.
The plaintiff’s expert made a logically attractive point that will resonate with a jury: The pregnant patient is more susceptible than the average patient. This point is accentuated by the fact that the patient comes back just two days later, is properly diagnosed, and becomes really sick really fast
The patient is diagnosed with a viral syndrome and yet is sent home on antibiotics. If it is viral, why were antibiotics administered? The treating obstetrician might have thought that it was appropriate to give antibiotics "just in case" or to "cover" the patient. Medico-legally, it creates an issue of fact as to what the doctor was thinking.
Another problem, which works against the defense, is the inert nature of an X-ray. It is not an invasive procedure and occurs multiple times all day long in an emergency department. If the jury accepts the argument that having had the X-ray would have saved the patient, it is an easy thing to have done.
In his differential diagnoses, the obstetrician had pneumonia as well as flu and bronchitis. In that situation, the doctor had an obligation to eliminate the most dangerous or potentially life-threatening cause.
The defense also avails itself of the "it-wouldn’t-have-mattered" defense. If they had ordered the X-ray, the patient would have succumbed anyway due to the severity of the illness. This defense has two primary problems. Juries don’t like to hear that what you did not do did not matter. A better argument is that a test is not warranted rather than it did not matter.
The other issue is that the patient was entitled to an opportunity at being saved. Even if ordering the chest X-ray would have created only a 10-30% opportunity of recovery, even a small percentage is worth money that the jury was ready to award.
Reference
- 31 Pa. J.V.R.A. 8:C4, 2013 WL 4081988 (Pa. Com. Pl. July 3, 2013). F
