Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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When physicians examine patients to establish a diagnosis and develop a treatment plan, often times additional tests or consultation appointments with specialists are suggested.  If a patient fails to undergo such follow up tests or consultations, arriving at the correct diagnosis can become more difficult.  Failing to diagnose a serious medical condition that requires timely medical care can result in adverse consequences, including the death of a patient.  When a patient is diagnosed with what appears to be a routine medical condition and later dies from a serious medical condition, that patient’s family will start looking for answers why the treating physician did not do more for the patient.  In searching for an answer, the patient’s medical record becomes an important piece of the puzzle.  In two recent Florida wrongful death cases, the patient’s medical records left many questioned unanswered and resulted in large jury verdicts in favor of the patients’ estates. 

            The first case involved a twenty-two year-old father who died from subacute bacterial endocarditis.  The decedent, who had a pre-existing heart disease, was never expected to live a long life.  He presented with medical complaints that appeared to be consisted with an upper respiratory infection.  He was treated by two different family practitioners who made the same diagnosis.  Approximately two and a half weeks after treating with the defendant physicians, the decedent was diagnosed with subacute bacterial endocarditis and later died from that condition.  The decedent’s family claimed that the family practitioners failed to appreciate the decedent’s medical signs and symptoms and failed to order the appropriate follow-up diagnostic tests. 

            The defendant physician denied that the treatment they provided was negligent and argued that their diagnosis was consistent with the decedent’s symptoms.  The defendants also claimed that they had instructed the decedent to see a cardiologist based upon his history of congenital heart disease, which the decedent failed to do.  Experts presented by both sides acknowledged that the decedent’s life expectancy was variable at best, and agreed that the diagnosis of subacute bacterial endocarditis is difficult to make because the symptoms exhibited are flu-like symptoms.  The decedent’s subsequent treating physicians admitted that the eventual diagnosis was made almost by accident.  Although the decedent’s medical records indicated that he was advised to see a cardiologist, there was no documentation of steps taken to ensure compliance with this advice. 

            After a five day trial, the jury found the initial family practitioner who treated the decedent 35% at fault and the second family practitioner 65% at fault.  The jury did not find the decedent to be contributorily negligent based upon his failure to see a cardiologist as suggested by these physicians.  The decedent’s estate was awarded $1.5 million in damages.  It appears that given the seriousness of the decedent’s medical condition, the jury felt the defendant physicians needed to take a more active role in assisting the decedent obtain follow up care. 

            In the second wrongful death case, the jury likewise did not find a patient’s failure to seek follow up testing to be a contributing cause of his alleged misdiagnosis.  The decedent in this case was a 46 year old Type II diabetic who presented to his family practitioner with an elevated temperature of 104, a rapid pulse, and low blood pressure.  The family practitioner diagnosed the decedent with a viral flu, advised him to take Tylenol, and sent him home.  Three days later, the decedent died from cardiopulmonary arrest, septic shock, and bilateral pneumonia. 

            The decedent’s estate filed a wrongful death case claiming that the decedent died as a result of complications from a staph infection, which the defendant physician failed to diagnose.  The decedent’s estate also argued that the decedent should have been given a blood culture to detect the infection, which could have been successfully treated with antibiotics.  The defendant physician argued that he had suggested laboratory tests, but that the decedent declined to have such tests.  He also argued that the staph infection was not present at the time he treated the decedent. 

            Although the doctor claimed he recommended laboratory testing for the decedent, there were no entries in the medical record to support his contention.  In addition, the decedent’s son who was present when his father treated with the defendant, claimed that the defendant made no such recommendation.  Counsel for the estate argued that if the defendant had made a follow-up treatment recommendation, then this was something that should have been recorded in the medical record.  The jury found the defendant 100% negligent for the alleged wrongful death and awarded the estate $7.8 million.   

           The difficulty with defending these two wrongful death cases appears to be the lack of documentation in the medical record regarding follow up treatment recommendations or plans.  In addition, there was no documentation to suggest that any arrangements were made to assist the patients with obtaining follow up care.  Physicians should always provide a detailed outline of all the treatment recommendations they have offered their patients, especially if there is an urgent need for such follow up care.  It is also helpful for physicians to track whether the patient followed through with their suggestions.  If follow up care is urgent, the physician should consider having his office staff assist the patient with making an appointment in a timely manner.  The physician should also make an entry in the patient’s record regarding when the test results were received and the significance of the test results.  The physician should also prepare documentation that the patient was informed of the results and the significance of the results.  Taking these extra steps to make sure a patient follows the physician’s treatment recommendations can be extremely helpful when defending against a misdiagnosis claim.  If a patient does not agree with a proposed course of treatment, the physician should make sure they explain the risks and benefits of going forward with the treatment plan as opposed to foregoing treatment.  The patient should also be provided with information about the risks and benefits of potential alternative treatment plans.  All aspects of these conversations should be noted in the medical record in detail, especially if a patient decides to forgo the suggested course of treatment. 

Follow-Up Tests

by Attorney Frank E. Reardon

November 2000