Assuming the Worst

Ann S. Lofsky, MD, Governor Emeritus (deceased).

Many malpractice claims involve failures to diagnose disease. When a patient dies, it can be difficult for a jury to accept that a competent physician could have missed the correct diagnosis—especially if the outcome might have been avoided. The following claim illustrates how a physician’s reluctance to aggressively evaluate subtle changes in a long-term patient’s symptoms made him possibly liable for the end result.

A 43-year-old obese woman with a history of asthma was followed by our insured internist for more than 10 years. During this time, she had multiple episodes of thrombophlebitis following an initial episode of deep venous thrombosis and pulmonary embolism, which had been treated with intravenous heparin and then oral warfarin. Her multiple episodes of leg and joint pain were attributed to phlebitis and arthritis and were treated with nonsteroidal anti-inflammatories or short courses of warfarin if the anti-inflammatories failed to relieve the symptoms.

The patient presented to the insured’s office on a Monday morning complaining of right leg pain, which had lasted the entire weekend. Although it was similar to her previous episodes, this time the pain was not relieved by rest or leg elevation and was constantly present from her ankle to her buttocks. The patient had developed shortness of breath walking from the parking lot to the internist’s office. Physical examination revealed no leg swelling, but the patient had mild tenderness over the greater trochanter with decreased hip flexion when compared to the other side. The insured suspected recurrent trochanteric bursitis, phlebitis, and asthmatic exacerbation. He recommended bed rest, Feldene®, and local heat application. He instructed the patient to call the office in several days for follow up.

Was This an Appropriate Evaluation and Treatment of the Woman’s Symptoms?

Two days after the office visit, the patient died of a massive pulmonary embolism. The defense expert opined that there were no physical or objective findings that would have led the insured to a diagnosis of deep venous thrombosis (DVT). He argued that the clot which had given rise to the pulmonary embolism had likely not even formed by the time of the office visit. The plaintiff’s expert countered that the insured should definitely have ordered a venogram or the less invasive alternatives of an ultrasound or Doppler to rule-out a DVT—especially given the change in her symptoms. He pointed out that with bursitis, pain usually comes on with walking and is relieved by rest. In contrast, thrombophlebitis pain is constant, consistent with the pain the patient was describing in the insured’s office. The shortness of breath the patient described may have been a result of smaller emboli to her lungs. The plaintiff’s expert felt that the woman should previously have been placed on lifelong anticoagulation because of her chronic and repetitive episodes of phlebitis following a documented pulmonary embolus.

Can This Claim Be Defended?

This case was peer-reviewed. After discussion, a panel of internists agreed it would be difficult to defend the insured’s care. Panel members opined that the insured should have been thinking about the possibility of a DVT in an obese patient with a history of venous disease and should have considered appropriate diagnostic and therapeutic interventions. It was felt that the only way to defend the case would be to argue that the patient’s complaints during the office visit were only temporally and not medically related to the pulmonary embolus that developed 48 hours later.

The panel felt the plaintiffs would likely argue that the symptoms were clearly related and were, in fact, a warning sign missed by the insured. This would probably be more convincing to a jury, especially in light of the fact that the internist had on at least two previous occasions prescribed anticoagulation therapy for this patient’s venous problems. When the woman presented to the office complaining of leg pain, a jury would likely expect a physician to have done more to investigate her complaints. The insured stated that the patient did not want a venogram because the procedure had been quite uncomfortable when one was performed before with negative findings, but it appeared that the non-invasive diagnostic alternatives had not been offered to her as an option. Since thrombophlebitis is a potentially life-threatening condition—whereas bursitis is not—it should have been considered more actively than it was by the insured.

The plaintiff requested the insured’s policy limit of $1 million. Economists calculated that the patient’s death resulted in a $600,000 economic loss to her family. In addition, she left her husband to raise three children, one of whom was handicapped. This would have been a highly sympathetic factor had it gone before a jury. There was a real possibility a verdict could have exceeded the policy limit. After deliberations with the internist, it was decided to settle this case for $1 million.

Pulmonary embolism is a leading cause of morbidity and mortality, but Harrison’s Principles of Internal Medicineestimates that only 10 to 30 percent of these cases are diagnosed before death. Not surprisingly, this is a relatively common cause of malpractice claims. The symptoms of deep venous thrombosis and pulmonary embolism can be quite insidious, and diagnosis often involves a lengthy differential. Assuming the worst and ruling out this potentially life-threatening condition is one way to reduce liability. Certainly not all patients with leg pain require diagnostic procedures to rule out DVTs, but with at-risk patients, the reasons for choosing an alternative diagnosis should be thought out and documented in the medical record. This reasoning may someday be scrutinized by your peers.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.



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