More details are emerging from the record breaking malpractice case. Let’s look at the medicine behind the case:
On Aug. 9, 2000, Navarro, who was a professional basketball player in his native Philippines, entered University Community Hospital-Carrollwood with a headache, nausea, dizziness, confusion and double vision. He described a personal medical history of hypertension, diabetes and elevated cholesterol plus a family history of strokes to the triage nurse. A different nurse than the triage nurse also noted he was unsteady on his feet.
Certainly, stroke is high on the differential with the visual changes and risk factors. Plenty of other disorders can also present this way as well, with stroke needing to be ruled out first. Head CT would be the initial test of choice.
When Navarro spoke with Herranz in the examination room, he mentioned the sudden onset of a headache earlier that day and that he had felt a “pop” in his head.According to the 2005 second amended complaint, Herranz did not complete an adequate medical history of Narvarro, nor did he do a complete or adequate neurological exam.
Navarro spent about 5 1/2 hours at UCH-Carrollwood, during which time he had two CT scans of his brain and was diagnosed with “sinusitis/headache” by Austin, prescribed Vicodin for the pain and an antibiotic by the doctor and sent home. He was not told to watch for any stroke symptoms.
So he had two CT scans – which I assume were negative, since he was discharged. A “sudden onset/pop in the head” description of the headache can be suggestive of a bleed, perhaps a subarachnoid hemorrhage. Mr. Navarro certainly had many risk factors for this (including hypertension and possible family history). Normally, the head CT is very sensitive for this within the first 12 hours, but declines over time. Minor bleeds also would reduce the sensitivity. If there continued to be a strong suspicion of a subarachnoid bleed, as I think there should have been in this case, a lumbar puncture should have been performed – despite a normal head CT.
The suit alleged that Navarro presented classic stroke symptoms that Austin should have noticed. It further said that CT scans are not adequate diagnostic tools for ruling out the type of stroke Navarro had.
Hindsight. If we all knew the diagnosis beforehand, of course it would be easier to pick the correct test.
Early the next morning, Navarro woke with a severe headache, slurred speech, nausea, confusion and trouble walking. He was readmitted to the UCH-Carrollwood Emergency Room at 6:05 a.m. Upon his return, he was labeled “urgent,” but doctors still had not diagnosed a stroke. It wasn’t until he was transferred to Carrollwood’s sister hospital, UCH-Fletcher, that afternoon that surgery was finally performed. By then, the stroke had already left him paralyzed with mental disabilities. During surgery, he slipped into a four-month coma. He is now confined to a wheelchair.
By now, the stroke symptoms are clear. Discharge home with antibiotics/Vicodin was a bad move, needless to say. The reports didn’t say what kind of bleed it was. However, the delay in diagnosis has already happened with tragic results. Two areas where malpractice could have been avoided:
1) admit, neurology consult, MRI – which may have added sensitivity for finding the bleed;
2) lumbar puncture despite a normal head CT – which could have also detected the bleed. A clinical suspicion of a subarachnoid hemorrhage would have been needed.
Update:
That being said, I can see where the ER doc was coming from. Two negative head CTs during a 5 1/2 ER visit is par for the course. There are many who would discharge the patient after two negative head CTs.
For every stroke/bleed that you do the neurology consult/MRI/LP workup on, there are thousands where the cause really would be a sinus headache. Talking to a few ER docs, the admit/neurology consult/MRI approach certainly will be the preferred method going forward. “I can’t leave anything to chance” are the words floating around the ER today after this chilling verdict.
Overlawyered with continuing coverage.
Related posts:
- Stroke and healthlines
- Thrombolytics and stroke
- Stroke and tPA
- Stroke and tPA: ER perspective
- "Stroke Code"
- Stroke and tPA: A journalist seeks an anonymous commenter
- Defensive medicine in the ER
{ 23 comments }
I think even Kevin is still getting sucked in by hindsight bias. Not just one, but many people were involved in this patient’s care before things really took a turn for the worse. Was it 1) the result of serial negligence of many providers, or 2) a hard diagnosis to make prospectively without the benefit of hindsight.
The only way to evaluate cases like this are to create a case record of only the information available at the stage each provider saw the patient; no information about outcome whatsoever is included. Then this case and a dozen others, either real or fictional, are evaluated by experts for whether the standard of care was met. They are kept honest and unbiased because they don’t know which case or cases are the legal ones in question, and they don’t know the outcome. That’s the real bias to avoid; outcome should alter any award, but cannot determine the correctness of medical care. The care was either appropriate or not regardless of whether he is vegatative or suffers no deficit whatsoever.
The scary thing to me and many ER physicans about cases like this is that outside of the diploplia I probably see 3-4 patients like this a week and usually send them home with or without a Head CT. When we read cases like this we thing “Thank God it wasn’t me” and realize these cases are bound to eventually happen to us too. I see 3-4 patients an hour I CANNOT decrease that to 0.5-1.0 patient an hour and get a specialty consult on every single patient.
This ER scenario, is very, very similar to that of my mother.
I was quite worried that inadequate testing had been done when she was released from the ER after a negative CT. (or rather a “no recent changes” CT – she’d had a previous stroke).
There won’t be an autopsy, as I went out of town and didn’t find her body for over a week .
I guess I should clarify it was just a few day trips for museums and shopping, and I was deliberately avoiding my mother, and guilt is a sonofabitch.
And I should clarify nobody is going to get sued, it’s just that I wish I’d been taken more seriously when I balked at her going home.
FWIW, I am fairly certain the lumbar, and my mother almost left the ER AMA as it was.
correction: “fairly certain the lumbar puncture would have been refused”
I’m not sure how a lumbar puncture would have changed her outcome unless she died of meningitis, and even then it’s not clear that doing a lumbar puncture and discovering meningitis changes the outcome.
I realize the effort in this article is to examine the medicine behind the verdict. The medicine only provides the factual basis for the jury to conclude malpractice occurred. As in all malpractice cases it is a yes or no decision. You can slice and dice the facts all week, but, trust me, these facts are not special or unique to lawyers who review missed or delayed diagnosis cases.
The medicine, however, does not provide a good explanation for what is obviously unique – the jury felt the need to award punitive damages and, as a consequence, to be certain the compensatory damages were truly adequate. By their dollar awards in this case the jury is communicating disgust with someone or something (likely multiple someones or somethings). The level of disgust is likely related to the size of the punitive damage award. I would say this jury was about as disgusted as one can get and not yell obscenities.
Since I was not in the courtroom it is difficult to isolate the fuel that ignited the jury’s reaction to the case. I have my suspicions, but they could be well off the target.
There is one observation I feel confident enough to express – the probability of an award of punitive damages and a bleed-over into a large compensatory damage award should have been assessed very carefully by the defendants, the insurance company and the defense attorneys. It is extremely rare for a judge to permit a jury in a medical malpractice case to even consider the award of punitive damages. This judge concluded the evidence justified the jury instruction on punitive damages and the arguments of counsel on the subject. Alarm bells should have been ringing very loudly at that point and, probably, well prior to that point.
The fact is that judges have been insulating medical providers from larger medical malpractice verdicts for years by denying the victims the opportunity to seek punitive damages for grossly negligent, reckless or willful misconduct.
Good points. The possibility of punitive damages (which are not covered by malpractice insurance) always hangs over us like a dark cloud, threatening that ightning strike that is statistically unlikely to actually kill us but which implores us to go inside anyway.
So we settle.
GTL’s analysis certainly sounds like the most plausible explanation.
When I think of the amounts in cases like this, I think of how long it would take somebody to actually pay the amount awarded. The answer here could be 100 lifetimes, so the amount reflects a total reality disconnect. We have to conclude disgust is the only logical reason.
Unfortunately, this case will cost many millions more dollars than the verdict in defensive medicine costs going forward as the medical community reacts and everyone concerned hears the stampede of zebras with every headache.
One major change in the ER recently is the use of various “Allied Health Providers” i.e. nonphysicians. As this becomes common practice, ER docs can expect to be even less involved in the direct care of patients and in forming personal relationships with patients and their families. This potentially may increase the risk of claims.
The current medical and legal practice environment is unaffordable and unsustainable. Look for losses on both sides. Patients will be the ultimate losers as the availability of competant, affordable, and compassionate care becomes not merely elusive, but extinct.
When I leave the military and if I move to Florida, I will buy the most expensive house I can afford, lease my cars, and keep my savings in a Swiss Bank Account. This verdict just reinforces the fact that as a physician in Florida you need to protect your assets by hiring an asset protection lawyer in addition to the afformentioned. Then again, this verdict puts Florida lower down on my list.
“When I leave the military and if I move to Florida, I will buy the most expensive house I can afford, lease my cars, and keep my savings in a Swiss Bank Account”
Why? What happens when the most expensive home you bought declines in value 25% as real estate crashes, you are eaten alive by insurance (assuming you can get it), maintenance, and tax costs, and your leased car costs more than buying a Camry or Accord. Trust me that you won’t have any savings to even put under your mattress with a plan like that. And on top of that OJ, who no doubt thought the same thing, will be your neighbor
New federal bankruptcy laws supercede state laws; some of the favorable treatments Florida offered in the past have been significantly weakened. For example, the new bankruptcy law restricts a state’s homestead exemption to $125,000 if the person in bankruptcy bought his or her residence less than three years and four months before filing.
Perhaps the best advice if you are going to let the tail wag the dog is to stay in the military. Then all you have to worry about are enemy insurgents.
Didn’t realize the homestead law has been eaten away at. Very scary. I guess FL is now out of the question. The physician shortage in the sunshine state will get much worse with verdicts like this one.
Diplopia. Binocular horizontal? Binocula vertical? Offset? Monocular? Ptosis? Anisocoria? New onset diplopia in any pt, without localizing it to a 6th cranial nerve is a consult. A 6th in an older pt is usually benign, esp with 2 negative CT’s. Younger pts can present with Increased ICP but CT r/o mass lesion work upother stuff later. A 3rd nerve palsy is much more likely PICA Aneurysm in a younger pt and must be ruled with an MRA or better, Angiogram, still the gold standard. The key question with all diplopia is binocular or monocular.
The defense probably failed to seek trial bifurcation and to exclude the plaintiff from the court, his appearance being highly prejudicial.
3rd nerve palsy is much more likely PICA Aneurysm in a younger pt and must be ruled with an MRA or better, Angiogram, still the gold standard.
What the hell ER do you work in where you do MRA’s in the ER? You sound like one of those “expert witnesses” who have never actually set foot in an ER.
Slightly off topic and I assume the Navarro case pain and suffering component is not capped since it occured prior to Amendment 3.
From what I understand with this FL supreme court ruling, the lawyers are not bypassing the overall pain and suffering cap of $750k but only are increasing their percentage take from the total sum of money from a settlement/judgement. By doing this the patients are getting less from the final settlement/judgement and probably should find another lawyer if they are asked to waive their “constitutional rights”.
Additionally, I noticed that the FMA announced that one of the malpractice insurers (FPIC) will be lowering insurance rates from 8-19%! I guess things may be improving down there.
http://www.fmaonline.org/members/090506%20FPIC%20rate%20decrease.html
Any of the lawyers here have input on this?
“Good points. The possibility of punitive damages (which are not covered by malpractice insurance) always hangs over us like a dark cloud, threatening that ightning strike that is statistically unlikely to actually kill us but which implores us to go inside anyway.
So we settle.”
Most of the time you guys don’t make that call, your insurer does. And the likelihood of a malpractice case resulting in punitives goes beyond “statistically unlikely.” It’s nearly infinitesimal. You’ve got a better chance getting punitives after a car wreck. Have you quit driving?
“Rates are down all over, in both capped and noncapped states.”
Do you have a good source to back up your claim?
http://www.insurance-reform.org/pr/060227.html
I would like to see a chart like this one but with the state by state breakdown. Anyone know of a good source?
It is absurd to compare rates in ‘capped’ and ‘noncapped’ states, nothing more than a lawyer trick to avoid the real issue. Insurance companies are national, and areas of low cost subsidize areas of high cost. The real issue is the enormous cost of our predatory legal system, which is a national shame. Fact is, we spend tens of billions of dollars on litigation, and the real cost to the economy is much greater. Fact is the legal system in this country is nothing more than a feeding frenzy. A look at the yellow pages of any major American city is plenty of proof that something is terribly wrong.
Litigation is expensive and risky. That is why the pursuit of hopeless claims is the privilege of the wealthy, the foolish, and the legally aided. Despite howls of protest and dire predictions on the part of some lawyers, legal aid was abolished for most civil claims over 2 years ago and replaced by the conditional fee system, effectively privatising access to justice. It has been a success of sorts – the civil courts are now open to anyone with a good claim, whereas previously they were only for the wealthy and the minority poor enough to qualify for legal aid. Overall privatising litigation means widening access to justice for meritorious claims, and discouraging speculative and spurious claims. Litigation concerns enforcing legal rights to obtain compensation; provided it is properly founded, litigation is not intrinsically undesirable. Some of the exuberant advertising associated with privatised litigation may have negative connotations; it is a presentational problem.
Civil legal aid, however, still continues in two areas which impact on healthcare: clinical negligence and pharmaceutical product liability. The Government is now so concerned by the cost to the health service of clinical negligence litigation – outstanding contingent liabilities are estimated at billions – that it will shortly publish a White Paper. Economic arguments possess a force that reason lacks. But how has the healthcare industry become targeted as a deep pocket?
Most healthcare claims are legally aided because of their cost and complexity. Civil legal aid is fundamentally flawed. First, funding is granted on the advice of the applicant’s lawyer who has a financial interest in advancing the case – a clear conflict of interest creating perverse incentives to pursue unmeritorious cases. This is amply borne out by the near zero success rate in drug claims against the pharmaceutical industry, and that most clinical negligence cases fail – too often the only beneficiaries of legal aid are lawyers. Second, the usual “loser pays” rule of litigation doesn’t apply to an unsuccessful legally aided litigant who is in a no lose position while the defendant is in a no win position. Cases may be settled by defendants regardless of merit to avoid irrecoverable legal costs, a practice described as legal aid “blackmail” in Parliament and by the Bar Council. The effect of this rule was described by the House of Lords as unfair. It also arguably infringes the right to a fair trial under Article 6 of the Human Rights Act. Furthermore, because the reasons for funding decisions are privileged and confidential, the legal aid system is unaccountable to Parliament, to the courts and to the public.
Legal aid fulfils at no risk the economic aspirations of claimant lawyers who have little incentive to develop the commercial discipline imposed by conditional fee work. The continued availability of legal aid thus inhibits the growth of the conditional fee system and the widening of access to justice.
Most cases deserving compensation are, therefore, unlitigated because legal aid is only available to a small minority. Most litigated claims are unsustainable because legal aid is awarded with scant regard for merit. We can all reasonably wonder at the relationship between litigation, liability and compensation. For example, the benzodiazepine tranquilliser case involved thousands of claimants and cost over £40 million in legal aid without a penny obtained in compensation. In clinical negligence, the most expensive claims concern cerebral palsy, of which only a small percentage are attributable to birth events, and an even smaller proportion are attributable to negligent birth events. Medical mishaps are emotive and may bring together the lawyer, the layman and the scientist, a combination sometimes better at generating heat than light in the quest for justice. Natural sympathy lies with the victim, and this is exploited by the claimant lawyers’ lobby to provide uncritical support for legal aid.
Anyone injured as a result of deficient healthcare, whether clinical negligence or a defective product, is rightly entitled to compensation. There must be affordable access to justice. However, the present legal aid system fails woefully. Instead of empowering patients, legal aid enriches lawyers and impoverishes the health service. The costs, whether to the health service or the drug industry, are passed on to the patient by diverting funds intended for patient care. The forthcoming White Paper should be sufficiently comprehensive to consider the effect of litigation on the whole of the healthcare industry. The solution lies in the radical reform of the funding of litigation. The problems of litigation against healthcare providers are inextricably linked to the problems of legal aid. The present system should be scrapped and replaced by a part privatised system; state funding for the investigation of claims, and conditional fees for the conduct of litigation. This will widen access to justice, provide a fair balance of risk between the parties, and create appropriate incentives to pursue cases according to their merit.
Just some points of clarification:
Navarro’s case involved a thrombotic stroke, not a hemorrhagic one. So whether the imaging studies were appropriate for showing a brain bleed was irrelevant to the legal case.
Nevertheless, the CT was negative and the discharge decision was at least partly based on that information.
Defense lawyers did try to keep plaintiff out of the courtroom to avoid undue prejudice — they were not permitted to exclude him from the courtroom. Excluding a party is almost never permitted in Florida courts.
EVERYONE IS OVERLOOKING THE FACT THAT STROKE IS A HEAD INJURY, NOW VICODIN CAUSES SPINAL FLIUDS TO INCREASE WHICH WILL INTURN CAUSE A STROKE. READ THE MANUFACTURES WARNING. VICODIN IS A TIME RELEASE MEDICATION AND WHEN GIVEN OTHER MEDICATIONS AND A VICODIN THE VICODIN WILL DUMP AS MOST DOCTORS KNOW AND CALL IT , SO IF YOU DON’T GO INTO A COMA YOU’LL STROKE ARE SOMETHING WORSE. WAKE UP AMERICA.
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