CME - Infectious disease: A review of closed claim studies and liability issues
Introduction and history
Smallpox, plague, malaria, influenza, tuberculosis, HIV/AIDS, cholera, measles, typhus, pneumonia, rotavirus, Ebola, Marburg virus, MERS, dengue, yellow fever, hantavirus, MRSA, anthrax, pertussis, tetanus, meningitis, syphilis, SARS, Zika.
COVID-19.
Mysterious illnesses, epidemics, and pandemics have always played a role in our lives, in our societies, and in our stories. This human experience has been described in classical works — a plague among the Greek warriors in the Illiad — and in modern dystopian novels — the “super-flu” in The Stand.
In early works, epidemics were often considered divine punishments or portrayed as supernatural events. Often, the occurrence of an epidemic provided moral commentary on the characters in the story or on the society they lived in.
By the 19th century, scientists had discovered that epidemics were caused by microorganisms, and public health experts and physicians began suggesting more empirical ways to prevent or limit epidemics. The supernatural aspects disappeared from many stories, only to be replaced by more political and apocalyptic elements.
For physicians, these stories have a more profound meaning — they capture a tale of collective progress.
“The history of infectious disease is a saga of the exploits of the great clinicians and microbiologists of the past who have worked on bacterial toxins, parasite lifecycles, bacteria, fungi, rickettsia, Chlamydia, Mycoplasma, and protozoa. As a result, great advances have been made in public health, prevention, control measures, and chemotherapy for infectious diseases.” 1
This article tells individual stories of infectious disease, featured as closed claim studies. The issues in the cases selected for this CME include:
- failure to follow up on or report lab results;
- reporting incorrect lab results;
- failure to diagnose; and
- failure to appreciate the seriousness of a patient’s symptoms.
These closed claim studies are provided to help you improve patient safety and reduce potential liability risks that may arise when treating patients.
Case 1: Failure to diagnose tuberculosis
Presentation
A two-year-old boy with a five-day history of intermittent fever and stomachache was brought to his pediatrician. The child was diagnosed with a viral syndrome and treated with simethicone drops, liquid electrolyte replacement, and ibuprofen.
Physician action
Six days later – on July 16 – the patient was taken to the Emergency Department (ED) at a local hospital with continued fever, vomiting, wheezing, and shallow respirations. A chest x-ray was taken and interpreted by Radiologist A as “diffuse moderate perihilar interstitial prominence. Focal consolidation lateral segment right middle lobe and follow-up for pneumonia.”
The child was diagnosed with an upper respiratory infection, prescribed amoxicillin, and discharged. The mother was instructed to follow up with their pediatrician.
Over the next few days, the child had continued fever and poor appetite. A neurologic assessment showed a slight deviation of the child’s right eye. Pediatrician A ordered a stat MRI that revealed “diffuse ring enhancing lesions in bilateral cerebral and cerebellar hemispheres.”
The following day, Pediatrician B admitted the patient to the hospital for possible meningitis. Another chest x-ray was taken and compared with the film taken four days earlier. It showed persistent right middle lobe consolidation but slight improvement of the interstitial prominence. The patient was transferred to a children’s hospital.
Pediatric Intensivist A treated the patient. The physical exam revealed the patient had altered mental status and a mild inward deviation of the left eye without any ocular lesions. An MRI revealed “multiple cerebral lesions with ring enhancements.”
Pediatric Intensivist A’s impression was the child had probable neurocysticercosis. The differential diagnosis listed multiple abscesses and lymphoma with a secondary diagnosis of hyponatremia due to an inability to secrete ADH.
The patient was prescribed decadron and albendazole. An infectious disease specialist and pediatric neurologist were consulted. Results of a lumbar puncture were negative, and the child was transferred to the pediatric ICU.
Pediatric Neurologist A assessed the patient the next day. His examination revealed mild nuchal rigidity. After reviewing the chest x-ray taken at the first hospital, Neurologist A questioned whether the film actually showed “perihilar adenopathy” — a finding generally consistent with tuberculosis in children. He ultimately concurred with the diagnosis of neurocysticercosis.
Radiologist B reviewed the previous chest x-rays, and his impression was “right upper and right middle lobe infiltrate/atelectasis, interval improvement from prior study.”
The pediatric infectious disease physician’s impression was also neurocysticercosis. He mentioned that the family traveled frequently to Mexico, but there was no family history of tuberculosis or contact with tuberculosis.
Radiologist C read x-rays taken the following day, July 19. His interpretation was “frontal and lateral views of the chest again show a right middle lobe area of atelectasis and infiltrate with associated atelectasis and/or infiltrate of the right upper lobe in its apical segment. The heart is normal. There is no pleural effusion or pneumothorax.” His impression was no significant change.
Radiologist C also read the chest film taken from the prior hospitalization and mentioned that tuberculosis should be considered. However, he did not dictate his report until three days later and authenticated it 11 days later.
On July 24, the child became unresponsive. He developed fever and hyponatremia. EEG results suggested encephalopathy. A head CT noted brain edema in the right frontal lobe and left thalamus. A chest CT noted unusual vegetation at the junction of the superior vena cava and right atrium. The following morning, Pediatric Intensivist B reviewed the chest x-ray from July 24 that showed “hilar adenopathy and right middle lobe process.” He questioned whether tuberculosis could play a role in the patient’s condition.
Pediatric Neurologist A ordered a repeat MRI that showed findings consistent with multiple tuberculoma and tuberculous meningitis. Results of acid-fast stains of gastric aspirate confirmed mycobacterium tuberculosis. By the time the diagnosis was made, the patient had developed severe cognitive deficits that led to permanent disability.
Allegations
A lawsuit was filed against three pediatric neurologists, two pediatric intensivists, three radiologists, and the children’s hospital. It was alleged that all three radiologists misread the chest x-rays and failed to consider tuberculosis as a possible diagnosis. The plaintiff’s allegations focused on Radiologist C and included: failure to immediately notify the attending physician of the potential diagnosis of tuberculosis and failure to timely approve the report electronically.
Legal implications
Two defense reviewers stated that tuberculosis should have been high on the list of differential diagnoses based on the clinical presentation and geographical area. A blind radiology review confirmed that tuberculosis should have been listed as a differential diagnosis based on the x-rays on July 11 and July 19. However, because of the number of defense experts involved, there were some inconsistencies in their opinions.
The three-day delay in dictating the radiology reports on July 11 and July 19 created a significant weakness for the defense. Radiologist C failed to mention the possibility of tuberculosis due to the suspected lymphadenopathy on the July 11 report.
The plaintiff ’s attorney retained well-credentialed experts, who stated that the clinical presentation of the patient, along with lymphadenopathy on the various chest x-rays, should have made all the physicians suspicious for tuberculosis.
Disposition
This case was settled on behalf of all defendants.
Risk management considerations
Radiologist C was working as a temporary employee and used the hospital’s PACS system, which was similar to the system that he used in his practice. He mistakenly concluded that when he used voice dictation to produce his report, the report would automatically be available for others to view. Radiologist C was unsure what “authenticated” meant. In this system, the report needed to be finalized to generate a report that other physicians could view.
Whether reading x-rays at multiple sites as a locum tenens, thorough training on the facility’s PACS system is crucial. Although there are similarities, some PACS systems use different methods to finalize and transmit reports.
Additionally, reports should be reviewed for accuracy. Radiologist C read the first chest x-ray as “right middle lobe area of atelectasis and infiltrate without associated atelectasis and/or infiltrate of the right upper lobe in its apical segment.” Later he admitted that he was only aware that this patient had “right middle lobe infiltrate” and that this was a typo. It is important to review and dictate the patient history including all previous diagnostic studies, especially when the films represent a pattern of serious ongoing problems.
Case 2: Failure to treat wound infection
Presentation
On January 4, a 42-year-old man came to an orthopedic surgeon with an injury to his right knee. The patient complained of aching and pain with buckling, decreased range of motion, stiffness, swelling, and tightness. The problem had been ongoing and was aggravated when the patient’s knee “gave out” while he was on a ladder.
Physician action
An MRI of the right knee revealed a large tear of the posterior horn and mid-body of the medial meniscus. There was a small joint effusion and a small popliteal cyst.
The orthopedic surgeon recommended diagnostic arthroscopy and medial meniscectomy. He wrote orders at a local hospital for the patient to obtain a preoperative EKG; receive cefazolin prophylactically; and sign an informed consent form. The informed consent form included a discussion of the risks of infection, blood loss, nerve or blood vessel damage, footdrop, blood clots, and the need for further surgery.
On January 10, the orthopedic surgeon performed a right knee arthroscopy with partial medial and lateral meniscectomies and a chondroplasty of the patellofemoral joint. The patient was discharged to rehab.
The patient returned to the orthopedic surgeon on January 24. The patient reported that he had been doing well until the physical therapist cleaned the wound, and then he experienced increased pain, swelling, and fever.
The orthopedic surgeon documented that the patient had a wound infection. He took the patient to surgery that day and performed a right knee arthroscopy with synovectomy and debridement. He reported finding a cloudy, yellowish fluid upon entering the knee joint and purulent material in the suprapatellar pouch, medial joint space, and lateral joint space. Cultures were obtained and submitted to the lab.
The next day, January 25, the patient asked to be discharged from the hospital. The orthopedic surgeon ultimately agreed to the discharge and documented the following:
“The patient was afebrile and hemodynamically stable throughout his hospital stay. His clinical course revealed defervescence and improvement on antibiotics. This was discussed with the patient at bedside on postoperative day #1. He wished to be discharged home secondary to social concerns and need for child care and also the distance from the hospital to his loved ones. Discussed with the patient that ideally it would be nice to maintain him on IV antibiotics until final cultures are read. At his insistence I agreed with discharge to home. I am discharging him on broad-spectrum amoxicillin/clavulanic acid to cover him for staphylococcus. I have discussed with him that there may be a need for change of antibiotics, potentially IV antibiotics for six weeks for coverage. At the time of discharge, he appeared to understand the risks of potential recurrent infection necessitating further operation.”
On January 27, two days after his discharge, the patient said he called the orthopedic surgeon to report continuing severe pain. The patient claimed the orthopedic surgeon told him to continue his pain medication and return to the clinic the following week.
Two more days passed, and the patient came to the ED. The ED physician found the results of the cultures obtained by the orthopedic surgeon five days earlier. The results showed multiple organisms including MRSA and Group B Strep. The patient was admitted to the hospital and started on IV vancomycin. He underwent extensive treatment and multiple procedures that eventually culminated in a total knee replacement.
Allegations
A lawsuit was filed against the orthopedic surgeon. The allegations included:
- failure to start vancomycin when the patient initially returned with signs of infection;
- inappropriately discharging the patient on oral amoxicillin/clavulanic acid after the first debridement procedure;
- failure to see the patient when he called after discharge; and
- failure to follow up on cultures obtained during the first debridement procedure.
The patient claimed these actions were the proximate cause of the progression of the infection that eventually led to the need for a total knee replacement.
Legal implications
Orthopedic surgeons who reviewed this case for the plaintiffs were critical of the defendant’s decision to perform an arthroscopic debridement and washout. A more thorough irrigation and debridement could have been performed with an open procedure. They were also critical of the orthopedic surgeon’s decision to discharge the patient on oral antibiotics, knowing the patient had an infected knee. Finally, the plaintiff’s experts faulted the defendant for failing to follow up with the hospital lab about the results of the cultures.
Defense experts testified that the orthopedic surgeon was within the standard of care when he evaluated and treated the patient. The defendant’s decision to perform the first washout procedure arthroscopically was appropriate. The orthopedic surgeon ordered the appropriate lab analysis and was acting within the standard of care when relying on the lab staff to notify him of the culture results. The hospital and staff did not follow their own policies and procedures in failing to notify the orthopedic surgeon of the positive results.
An infectious disease physician testified that the defendant’s decision to initially prescribe amoxicillin/clavulanic acid was appropriate. Further, the alleged delay in administering IV vancomycin did not change the course of treatment of the infection and did not cause the patient’s knee replacement. The patient should not have left the hospital on January 25, and by doing so, he was responsible for any failure to treat the knee infection with IV antibiotics in an inpatient setting.
Regarding the patient’s claim that the orthopedic surgeon “blew him off” when he called complaining of pain two days after discharge, the defendant said he never spoke to the patient and phone records show no calls were made from the patient to the orthopedic surgeon that day.
The defense of this case was compromised when it was discovered that the discharge summary documenting the orthopedic surgeon’s decision to release the patient was not dictated until 11 months after the discharge. There was no evidence in the chart that would support the defendant’s version of events. The nurses’ notes were silent on the issue of the discharge, and there were no contemporaneous progress notes from the orthopedic surgeon.
Disposition
This case was settled on behalf of the orthopedic surgeon.
Risk management considerations
The defense experts testified that the defendant was acting within the standard of care when relying upon the hospital staff to report the results of the culture. However, it is good risk management for a physician to maintain a tracking system to determine if the results have been received. Taking a proactive approach to tracking test results can help prevent allegations of delay in diagnosing and treating.
The Texas Medical Board requires that “each licensed physician of the board shall maintain an adequate medical record for each patient that is complete, contemporaneous and legible.” 2 The hospital discharge contained good details but failed the contemporaneous test. It was unusual that neither the nurses’ notes nor the progress notes referred to the discharge. Timely, accurate dictation of the discharge summary assists in the defense of claims.