Speaker 1: You are listening to Your Practice Made Perfect; support, protection and advice for practicing medical professionals. Brought to you by SVMIC.
Brian: Thank you for being with us today. My name is Brian Fortenberry. On today's podcast, we're going to be looking at a closed claim, reviewing it and having some important discussion. To help us out with that, we have attorney Tim Rector. Tim, thanks for joining us today.
Tim: It's great to be here today, Brian. I appreciate you inviting me.
Brian: Absolutely. So, before we jump in here and get into the meat of what we're going to be talking about, tell us a little bit about yourself and about what you do here at SVMIC.
Tim: Well, I've been with the State Volunteer for 13 years. I started out as attorney and the Claims Department and I'm a senior claimed attorney now. Prior to come to State Volunteer, I was a private practice litigator for 10 years. And then prior to that, I spent 21 years as an Army officer in United States Military Service.
Brian: Well, fantastic, and thank you for your service. Before we really get into our discussion and our dialogue about the issues with this case and how it might help our listeners in the future and with their practices, it's probably best we go over what we're going to be talking about today. So, I'm going to read a quick story about what this case was about.
It involves Mary, who was a 60-year-old female, who brought suit against a cardiologist, alleging he failed to timely diagnose and treat her retroperitoneal hemorrhage, following a cardiac catheterization. Unfortunately for Mary, this alleged failure to diagnose and treat her resulted in a cascade of multiple medical and surgical conditions. Mary arrived at the emergency department of a rural hospital on June 1st, with complaints of chest pain, numbness nine out of ten pain in her left arm, shortness of breath and diaphoresis. She had a prior history of hypertension, emphysema, atrial fibrillation, Coumadin therapy, prosthetic valve replacement, high cholesterol and a heart catheterization, two years prior to this.
At her emergency department visit, she was diagnosed with acute myocardial infarction, and was given a heparin bolus drip amongst other medications. Mary was transferred to a larger hospital where she was taken for emergency left heart catheterization with coronary angiography, which showed severe three vessel disease. Angioplasty was not performed because it was believed that Mary would be best served by a coronary artery bypass graft. The sheath was pulled with manual pressure applied for 25 minutes and hemostasis was noted. Mary's heparin drip was reinstated, and the document in the nursing notes indicated several times, that are groin site was without complication. An echocardiogram revealed an ejection fraction of 40 to 45% with inferior hypokinesis, mild to moderate mitral and tricuspid regurgitation and a right ventricular systolic pressure, measurement of 40 to 50, suggesting pulmonary hypertension.
The coronary artery bypass graft procedure was planned for the following week, to allow Mary time to recover from her acute myocardial infarction. She was to stay on heparin while she was off Coumadin. On June 2nd, she complained of back pain. And then on June 3rd, she complained of right groin pain, and was noted to be hypotensive. The cardiologist order discontinuation of the heparin drip, and IV fluid bolus was given. The following day, which was June 4th, the heparin drip was restarted. By June 7th, Mary's hematocrit dropped to 24.8, when the normal range was 34.9 to 44.5. So, she was transfused with red blood cells.
She continued to complain it back pain and developed a decrease in urine output, with a white blood cell count of 31,000, and the normal range being 3,500 to 10,500. June 9th, a CT of her abdomen revealed a retroperitoneal hematoma, compressing the bladder and rectum. And that day, a general surgeon recommended holding heparin for 12 hours with transfusion of packed red blood cells. At that time, the surgeon determined that she was not a good surgical candidate due to her recent myocardial infarction. On June 10th, that heparin drip was once again reinstated, and a renal console was obtained due to worsening renal insufficiency. While Mary's condition did gradually improve over the next few days, it took a negative turn on June 17th, when she developed hematuria and bloody diarrhea.
A GI console and a tagged red blood cell study were both obtained. These revealed no evidence of bleeding, leading to the discontinuation of her heparin drip. An EGD showed a duodenal alter. On June 18th, she developed a colovaginal fistula and underwent an exploratory laparotomy with colostomy and sigmoidectomy, with the pathology report showing acute necrotizing colitis. She next developed a right pleural effusion, which required a chest tube placement on June 28th. Ultimately, Mary was discharged on July 8th, with follow up plans on her Coumadin, beta blocker and statin therapy, and physical therapy.
On August 8th, she was able to ambulate with a walker. A cystoscopy subsequently showed a fistula between the bladder and her vagina. These conditions prompted the cardiologist to transfer Mary to a larger cardiology group practicing at a tertiary hospital that could provide her with more specialized care. Here, she underwent treatment for the fistulas, including the new condition of pyelonephritis. In November, a cardio stress test showed no evidence of ischemia. So, Mary was deemed an appropriate candidate for surgery for cystectomy and ileal conduit, and also, a proctectomy that occurred four months later. During litigation, Mary had not yet had the coronary artery bypass graft procedure.
All right, Tim very complicated case it sounds like. After the lawsuit was filed, what did experts agree calls retroperitoneal hematoma we heard about?
Tim: Well, Brian, there was no debate over the issue that the combination of Retavase, aspirin, Coumadin and intravenous heparin more likely than not contributed to the retroperitoneal hematoma. This bleeding is a known but relatively rare complication of a cardiac catheterization procedure. Everyone just basically conceded this point.
Brian: Okay. So, it wasn't totally uncommon that this would occur. Could the plaintiff's counsel have argued that maybe an earlier CT might have made a difference in this case?
Tim: Oh yeah, they did. They tried to make that argument but unsuccessfully. They tried to raise the issue that earlier abdominal and pelvic CT would have led to earlier surgical intervention. Brian, remember when the general surgeon was consulted, she believed that Mary was an inappropriate surgical candidate given her recent MI. So, the issue of getting an earlier CT was really a red herring. Plus, during litigation, the plaintiff never produced a surgeon as an expert to say otherwise.
Brian: Well, then was it debated as to whether or not Mary's heparin could have been discontinued for so long? Was that even brought up?
Tim: Well, that really came down to a matter of opinion among the experts as to whether or not heparin should have been discontinued and for how long. We never really got down to how long. A matter of days, matter hours or whatever.
Brian: So, what kind of expert did the plaintiff use for this?
Tim: Well, on the plaintiff side, the only expert they identified was the cardiac thoracic surgeon, who rendered opinions on standard of care and causation. His deposition testimony contained several mistakes that really damaged the plaintiff's case. Some of these mistakes involve legal statutory requirements to qualify a physician to testify in a medical malpractice case. And I'll get to those mistakes in a few minutes. The the plaintiff of expert stated, he did not consider himself an expert in cardiology, and that's our policy holder.
Tim: And more importantly, he had no experience in dealing with fistulas and bladder ischemia.
Brian: Really, in this scenario then, we've got an expert on the plaintiff side that is really helping make the case for us here, right?
Tim: Yes, setting the stage to probably get excluded as an expert in this case. Leaving the plaintiff with no expert in the case. He opined that these were complications of the hematoma that could have been prevented, but for the deviation to standard of care of the cardiologist. His criticisms was the failure to diagnose the significant blood loss when Mary had a 17-point drop in her hematocrit, and that was over a period of two days.
He also criticized the failure to order a CT stat, immediately, instead of waiting the next day. However, the plaintiff expert could not say to reasonable degree of medical certainty that different treatment would have prevented Mary's injuries.
Brian: Yeah, it does sound like that there were significant issues with the plaintiff's expert.
Brian: What experts did the defense line up? Because it sounds like to me that once you have one side of the case that has kind of been lackluster in their presentation of an expert. What was the defense able to do to maybe help out?
Tim: Brian, our defense team lined up a great lineup of experts. We had a cardiologist, we had a urologist and a gastroenterologist on our team. All these experts agreed that the cardiologist and the other treating physicians were between a rock and a hard place when it came to the decision whether it's continue to heparin or discontinue it for the surgical option to finding the bleed and evacuate the hematoma. Here, the treating physicians were trying to walk a fine line. It did not have an option that was without significant risks.
Brian: Right. That's difficult.
Tim: It is. When a patient, such as Mary, who has anticoagulation therapy, she can only be taken off that therapy for a very, very important reason.
Tim: In such circumstances, you may try to buy a few hours by interrupting the therapy and then resume the therapy as soon as possible. The risk interrupting that therapy significantly increases the risk that the patient suffers a stroke or cardiac event. On the other hand, if the patient bleeds, she can always be given blood or even a lot of blood. But if she has a stroke or dies, that is something you just cannot correct.
Brian: Certainly. That is a very fine line on trying to manage that blood thinner because it's necessary but then if you get in these types of situations, it can certainly cause some difficult complications. That being said, did any of the experts have an opinion as to what caused Mary's bowel and bladder complications or in other words this Coumadin / heparin thing was there a bleed because of this?
Tim: It was hard to determine where was the site of this possible bleed. The only expert in the case that opined on that subject was our defense gastroenterologist. He said there were two potential causes for Mary to have this bladder injury. One, he said it could be a mesenteric ischemia. Or two, a microemboli. As for the microemboli, there was no evidence in the record to indicate it was this. So, the theory was ruled out.
Now, taking a look at the mesenteric ischemia, that's a condition that results from low flow state in the mesenteric arteries, and would be precipitated by Mary's preexisting vascular disease, her afib, her age and the fact she was a smoker.
Brian: Certainly, all contributing factors, correct?
Tim: Yeah. All these things she prior had, her history. The mesenteric arteries branches off the abdominal aorta, supplying blood to most of the organs in the abdomen. So, all of Mary's pre-existing conditions just compromised these arteries. Now GI expert also adamantly disagreed with a plaintiff expert theory that the hematoma pushed upon the retroperitonea, impinging upon those arteries. This is a flawed hypothesis, Brian. Because blood supply to the entire intestinal tract would have been compromised. But the pathology report listed only patchy areas of acute deep necrotizing colitis, which reports the injury was not related to the hematoma.
Brian: Okay. So, we have supporting evidence there?
Tim: And thus, our theory that the mesenteric ischemia is much more plausible explanation, making the retroperitoneal hematoma playing a minor role in a damage that Mary suffered to her intestinal tract. That defense GI doctor concluded that Mary would have had the exact same outcome, even if the retroperitoneal bleed had not occurred.
Brian: Oh, wow. So, that was opined obviously that that condition would have still been there. How was this case settled? I mean, how did it end?
Tim: Well, once the defense team completed expert depositions, they filed a motion for summary judgment.
Brian: Okay. So, what was the basis of that motion?
Tim: Brian, we have to go back and look at the critical mistakes made in the deposition by the plaintiff expert. Recall, he stated he did not consider himself an expert in cardiology, and he had no experience in dealing with fistulas and bladder ischemia. But more importantly, he was unable to support causation that more likely than not, the hematoma caused the injuries. Well when this got heard before the trial, court they granted our motion excluding the plaintiff expert from testifying on causation, since his opinions really lack reliability. The plaintiff of had no other expert to support causation. This ended the case for the cardiologist before trial.
Brian: It is very obvious to me, at least in this situation, that the lack of a definitive expert witness played a huge part in this case. So, what in your opinion, Tim, are some of the lessons, some of the takeaways, in this case, that our listeners may be able to use for the future?
Tim: Well, Brian, the plaintiff expert was just simply ill-prepared to give a deposition in this case. But for the summary judgment, this was a case that could have really gone bad for a cardiologist at trial. Especially, since Mary had a colostomy. And if she showed up, dependent on a walker in a courtroom, that would have really looked bad.
Tim: She was making claims of severe neurological deficits in this case. The lesson learned here is to take seriously the preparation time and effort in litigation process and answering discovery or the giving of a deposition or sitting in the witness box at trial.
Brian: What can SVMIC do to avoid this kind of mistake?
Tim: Brian, I think State Volunteer employs top-notch defense attorneys to defend our doctors. We provide our physicians with a lot of resources to help them get ready to defend their case and a win it. All I can say, it could be your case, one day and you want to put your best foot forward.
Brian: Absolutely. Couldn't agree more. Tim, thank you so much for your time being with us today.
Tim: Well, Brian, thanks for having me.
Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host, Brian Fortenberry. Listen to more episodes, subscribe to the podcast and find show notes at svmic.com/podcast. The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and change over time. All names in the case have been changed to protect privacy.