$40 Million Medical Malpractice Verdict for Stroke Victim

by W Sullivan
Law Books with Gavel

Allegations of failure to treat hypertension results in a $40 million medical malpractice verdict to stroke victim

Jurors entered a $40 million medical malpractice verdict in favor of a stroke victim and against Advocate Health and a primary care provider when a patient with a single reading of hypertension in the physician’s office was discharged without hypertension medications and later suffered a debilitating brain hemorrhage. See an ABC7 News story about the case here.

Background

On January 29, 2015, a 37-year-old patient went to his PCP to be evaluated for a progressively worsening cough over the prior 2 months. The doctor noted the patient was having “coughing fits,” but did not complain of dyspnea. The medical assistant’s notes stated the patient said he was having a “hard time breathing.” During the patient’s, visit, his blood pressure was 190/102. He was diagnosed with acute bronchitis and hypertension and prescribed Zithromax (an antibiotic), Tessalon (a cough medication), Cheratussin AC (a codeine-based cough medication), and Pulmicort (a steroid inhaler). The patient was not prescribed antihypertensive medications. In a follow up call later that evening, the physician discussed with the patient that a pulmonary embolism could be a potential additional diagnosis. However, the patient declined a chest CT to be evaluated for pulmonary embolism and the physician charted that he agreed with the patient’s decision.

On February 6, 2015, the patient called his PCP complaining of a sore throat, ear ache, and runny nose. The physician reportedly refilled the patient’s Zithromax prescription over the phone.

On March 11, 2015 the patient was found sitting in his car in respiratory distress. He was unable to speak and his entire right side was weak. He was attempting to use his left arm to move his right arm. An ambulance was called and while in route to the hospital, the patient’s systolic blood pressure was reportedly as high as 290 systolic but the expert’s report noted that EMTs reported to ER staff that the patient’s SBP “ranged from 140-220.” Ultimately, the patient was diagnosed with a 5 x 4 cm basilar ganglia hemorrhage. Since his stroke, he has aphasia and cannot walk long distances, dress, bathe, or eat without assistance.

The Medical Malpractice Lawsuit

Attorneys with Jury

A malpractice complaint was filed in 2016. The plaintiff’s expert criticized the physician for failing to send the patient to the ER despite suspecting a PE; failing to appreciate the patient’s “apparent hypertension;” failing to order appropriate diagnostic testing including CBC, cardiac enzymes, lipid panel, ESR, CRP, C-CRP, D-dimer, CXR, ECG, chest CT, ABG, PFTs, echocardiogram, and pulmonary and cardiac consultations; and failing to appreciate apparent risk factors for a vascular event such as morbid obesity, hypertension, shortness of breath, and tachycardia.

During trial, the plaintiff attorneys successfully argued that the patient’s cough was due to hypertension and heart failure, not bronchitis. They also argued that his blood pressure should have been brought down to “goal range” within 30 days – which allegedly would have prevented the patient’s stroke.

In March 2024, a jury awarded the patient and his family $40 million.

Did the jury make the right decision?

While the patient’s medical records weren’t in the documents I obtained (see documents embedded below), here are some of the issues I picked out based upon the complaint and the initial expert opinion (see pages 38-42 of the complaint below):

Did the patient have hypertension?

The American College of Cardiology and the American Heart Association both recommend multiple blood pressure readings on multiple occasions before diagnosing a patient with hypertension. Guidelines available in 2015 stated a normal blood pressure was < 140/90. The patient had a BP reading of 132/82 at an outside clinic 6 months prior to his visit. If the January 2015 visit was the patient’s first abnormal BP reading, should he have been diagnosed with hypertension on that date?

Should the patient have been started on antihypertensive medications after his January 2015 visit?

JNC 8 was published in 2014 and recommended initiation of pharmacologic treatment for diastolic blood pressure >90 (Grade A) and for systolic blood pressure > 140 (Grade E). If the patient had a diagnosis of hypertension during his January 2015 visit, then JNC guidelines would recommend that he receive pharmacologic treatment. I wasn’t able to find recommendations to bring BP within “goal range” within 30 days as the plaintiff attorneys suggested.

Was the physician negligent for failing to refer the patient to the emergency department and obtain additional testing?

This allegation made less sense to me. I’ll start out by saying that with my experience both in medicine and in law, the expert’s opinion did not sound like it was written by a physician. It was pretty obvious to me that someone who was not in the medical field – likely an attorney – wrote the expert witness opinion. Again, to review the expert opinion, see pages 38-42 of the complaint embedded below.

The “expert” alleged that the physician was negligent for failing to send the patient with hypertension and a cough to the emergency department to rule out a pulmonary embolism. From the information presented in the complaint and in the expert witness opinion, the patient was considered as “low risk” (i.e. ~1.3% likelihood) of a pulmonary embolism using Wells Criteria and would have ruled out for pulmonary embolism using the PERC Rule. With the evidence I found, the patient was low risk for pulmonary embolism and his medical issues retrospectively did not mention a pulmonary embolism. I think it was unjustifiable to allege the physician was negligent for failing to obtain an immediate CT scan rather than engaging in shared decisionmaking with the patient.

The expert also alleged that the physician was negligent for failing to order numerous tests, including a CBC, cardiac enzymes, lipid panel, ESR, CRP, C-CRP, D-dimer, CXR, ECG, chest CT, ABG, pulmonary function tests, an echocardiogram, a pulmonary consultation, and a cardiac consultation. In other words, the expert is alleging that any patient in his or her mid-30s with a cough for two weeks, questionable difficulty breathing, and one episode of documented hypertension should be immediately referred for all of this testing. MedlinePlus notes that an acute cough comes on suddenly, usually last no more than 2 to 3 weeks, and is typically seen with “a cold, flu, or acute bronchitis.” There is no medical literature I could find suggesting such a comprehensive workup for an acute cough with or without hypertension.

Had the patient been referred to the emergency department, guidelines from the American College of Emergency Physicians stated that in patients with asymptomatic hypertension, routine screening with labs is not required and that even in asymptomatic markedly elevated blood pressure, routine medical intervention is not required. However, the guidelines only apply to patients without clinical findings suggesting acute target organ injury. While the patient’s cough and possible dyspnea could suggest pulmonary edema or CHF, in retrospect, there is no mention of those issues in the complaint or expert report and I can’t imagine that these additional health issues wouldn’t have been mentioned if they existed. Even if the patient had been screened in the ED for those issues, they were apparently never actually diagnosed and it is speculative to suggest that any additional treatment would have been initiated based solely on a cough and an isolated high blood pressure reading.

Was a $40 million medical malpractice verdict excessive?

The patient was 37 years old at the time of his stroke and will reportedly require constant assistance with his care for the rest of his life. The jury awarded $6 million for future medical expenses and just under $20 million for past and future disability, in addition to pain and suffering, emotional distress, and lost wages. See the verdict form below. It would be difficult to argue that the verdict is unreasonable for more than 30 years of care, disability, suffering, and lost wages.

Could documentation have impacted this case?

Medical documentation picture

Documentation can absolutely improve the defense of a malpractice lawsuit. One of the lectures I give involves improving medical record documentation. Here are a few ways that documentation could have impacted this case.

Discrepancies in Provider Notes

In this case, there was a discrepancy about whether the patient complained of dyspnea on his January 2015 visit. The physician documented “coughing fits” without dyspnea. The medical assistant documented that the patient was having a “hard time breathing.” Plaintiff attorneys use discrepancies like this to paint a picture that the provider was careless. For example, one argument might be that if the physician was that careless about obtaining a history, what else was the physician careless about?

If the physician was aware of the discrepancy between the patient’s complaints and the MA’s notes (not all notes automatically populate into a medical record), it may have been helpful to re-interview the patient about whether he was having difficulty breathing while the MA was in the room. Once the history was provided, both providers could accurately document the patient’s complaint. Alternatively, the physician may have documented that the MA’s note was reviewed and that the patient specifically denied dyspnea when asked by the examiner.

Addressing Abnormal Vital Signs

This case also involved an apparent lack of follow up on the patient’s high blood pressure reading. Two possible interventions could have helped address this issue. First, if the blood pressure was initially high, another reading could have been taken after the patient had waited in the clinic. It is common for a patient’s blood pressure to drop after becoming more relaxed in physician’s office. If the blood pressure decreases, note the decrease in the chart. If it doesn’t decrease, depending on the reading, medical therapy can be initiated or the blood pressure can be rechecked at a later date. Had the physician planned to recheck the blood pressure rather than starting medical therapy, a note to “Return in 2 weeks for repeat BP” would have shown that the issue was being addressed. Then, if the patient had not followed up in two weeks, the jury may have considered his failure to follow up as cause for his own bad outcome.

Follow Up

It is generally a good idea to advise patients to seek further medical care if their symptoms do not improve as expected, if they become worse, or if they develop additional problems. In this case, the patient called back to the clinic with URI symptoms a week after his initial visit. Had the patient been instructed to return for a re-examination, a repeat exam with repeat vital signs may have altered treatment in a manner that could have changed the patient’s outcome.


Have questions about a medical malpractice case or looking for a lecture about medical documentation? Contact me. I’d be happy to try to help!

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