Malpractice Case: When an Expert's Opinion on a Cardiac Death Isn't Useful

Gordon T. Ownby

Disclosures

December 07, 2020

Virtually all medical malpractice cases turn on expert testimony. If the conflicting testimony by the expert witnesses called by the plaintiff and the defendant meets proper thresholds, a jury will be called on to decide which expert to believe. But not just any words — even those uttered by a well-qualified physician — can get a case to the jury.

A plaintiff must prove four prongs to prosecute a claim of medical professional liability:

  • that a duty existed between the defendant healthcare provider and patient;

  • that the healthcare provider was negligent in his or her treatment of a patient;

  • that the patient suffered an injury; and

  • that there was a causal link between that injury and the negligence.

The duty and injury components are usually easily met, leaving the bulk of cases to be fought over as a battle between experts. But the last requirement, "causation," can sometimes trip up a plaintiff's case.

A 57-year-old man drove to the hospital emergency department at 4:03 AM, complaining of stomach pain and a tight chest. Within 15 minutes, vital signs were recorded, including a pain level of 7 out of 10. A nurse noted the patient's height and weight (including a body mass index of 33.9 kg/m2) and that he complained of neck pain, cough, sore throat, and chest congestion: "like a dull ache in my throat, like I'm getting strangled below my neck." The nurse noted that the patient was alert, was denying any chest pain or shortness of breath, and was speaking normally and ambulating without difficulty. After triage, he was placed in a bed at 4:22 AM.

The patient was then evaluated by another nurse whose notes, recorded at 4:59 AM, reflected that the patient was alert, oriented, cooperative, appeared to be in distress from pain, and that he had woken up with pain as if something was "stuck" in his throat. The notes reflect that the patient complained of epigastric pain, that he denied shortness of breath or inability to swallow, but that he said he felt the need to "clear his throat, but when he does, it doesn't clear."

The nurse noted no respiratory distress but upper chest pain and a sore throat. At 5:03 AM, the patient was placed on a cardiac monitor, and notes at 5:46 AM show that an IV site had been established and drawn specimens sent to the lab.

Dr ER1, an emergency specialist, evaluated the patient at 5:10 AM and ordered an ECG, which he reviewed at 5:34 AM. A radiologist read a chest x-ray ordered by Dr ER1 as showing "no radiographic evidence of acute cardiopulmonary disease" but "mild cardiomegaly."

Another nurse took over the patient's nursing care at 6:19 AM, and notes of that care showed vital signs and that the patient was "standing at bedside for comfort."

Dr ER2 took over from Dr ER1 at around 6:00 AM, and records show that over the next several hours, various tests were performed, including another ECG, two troponin tests, and other blood work. In his testimony later, Dr ER2 said that although he had no independent memory of treating the patient, it was his custom and practice to look at electronic records to see if a patient had been treated at the hospital previously. Also, according to his custom and practice, he would have looked at any previous discharge summaries and old ECGs, and would have talked to the patient.

At 11:00 AM, Dr ER2 decided to discharge the patient after seeing him a second time and "improved." Serial vital signs throughout the morning were normal and stable, and the patient's pain had reduced to 4 out of 10. Dr ER2's discharge included a diagnosis of "chest pain of unclear etiology," a referral of the patient to a cardiologist, and instruction to follow up with his primary care physician in 1 day.

Less than 8 hours after discharge, the patient died of an acute dissection of the aorta.

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