Tuesday, May 17, 2005

Enter the lawyers

Part I is here.

Discharged from hospital on Plavix. Continued smoking.

Now January 2002.

ER doc (now Defendant) notified via court documents that patient (now Plaintiff) has filed a lawsuit alleging malpractice. In that the Defendant did not adequately diagnose and treat the Plaintiff's CVA with thrombolytics, the standard of care at the time of the ER visit.

Thus begins the saga. The Defendant goes through disbelief, denial, anger; all at the same time. Gets a phone call from a representative of his malpractice insurer and is referred to a defense attorney.

Over the next year, the Defendant attends several depositions. His, of course, and those of the Plaintiff, the Plaintiff's sister, the ER doc from the tertiary referral center and the treating neurologist.

Elements of the depositions/trial testimony:

  • Plaintiff can't remember the ER visit. Testifies she awoke with symptoms after having gone to bed at 9pm asymptomatic.

  • Optometry note indicated history that the symptoms began the day before.

  • Dr. X, the plaintiff's ER doc witness, can't describe what he thinks happened at the initial ER visit and can't describe what he would have done differently, except that he would have done Visual Field testing.

  • Dr. X stated that he did the VF testing at his facility with the Plaintiff lying on the gurney.

  • Dr. X admits that, despite working in a referral center and seeing many acute CVA's, he has never administered thrombolytics for a CVA. And yet, he testifies that it is standard of care for ER docs. He testifies that he just calls the neurologist and the neurologist gives the thrombolytics.

  • Dr. X testifies that he is unaware whether there is a neurologist available at the initial hospital.

  • $600 per hour of deposition for 5 hours. Not bad pay, huh?

  • Dr. Y, the Plaintiff's neurologist, testifies that the Defendant violated SOC by not administering thrombolytics and that this failure caused the Plaintiff's visual field defect.

  • Dr. Y is informed that the Plaintiff admitted during her deposition that she was asymptomatic when she went to bed at 9pm and awoke just before going to the ER with symptoms. He testifies that if you awaken with symptoms, the three hour window starts when you wake up. He is offered a copy of the NINDS study and continues to testifies to this.

  • Dr. Y is informed that the Plaintiff had been hospitalized two weeks before her presentation to the Defendant for a retroperiotoneal bleed. He insists that she was still a candidate for thrombolytics.

  • Dr. Y's admits he knows nothing about the capability of the small community hospital. He feels he is familiar with the SOC for an ER doc because he sees patients referred to him from small community hospitals.

  • Dr. Y testifies that eye pain is a classic symptom of an occipital stroke and should have been recognized as such right away.

  • Dr. Y testifies that it is SOC for an ER doc to perform visual field testing in the ER when faced with an eye complaint.

  • Dr. Y stated that, at his hospital, they have a 90% improvement rate in patients treated with thrombolytics.


  • Dr. X refused to testify at trial. This meant the Plaintiff did not have an expert on SOC. In their state, the law requires that the SOC expert witness practice in the same field of medicine as the Defendant. The causation expert can be anyone with knowledge. However, the trial judge allowed the neurologist to testify as the SOC expert.

    At trial, 12 months later, the Defense presented large posters of the NINDS guidelines regarding the three hour window and the statements of the ACEP and AAEM that thrombolytics for stroke is not SOC for ER docs. The Defense presented an ER doc and a neurologist as defense experts who testified that the Plaintiff did not qualify for thrombolytics.

    Verdict for the Defense.

    Issues I noted:
    • Should the Defendant have performed VF testing in the ER?

    • Why did the judge allow the Neurologist to testify as to SOC? Sure, he is aware of the types of patients that are referred to him, but is he, in any way, aware of how many "eye pain" and potential stroke patients we see in the ER every day that don't get referred to neurology? Aren't those patients as important in determining SOC as the ones the neurologists see?

    • Should this neurologist be sanctioned for such blatant false testimony as the clock starts when you wake up with symptoms? Is there anything in the literature to support this? Do you think the plaintiff would have been able to get any other neurologist to make this statement?

    • Why should the Defendant have no recourse against the Plaintiff, her lawyers and her experts for the disruption to his life and the damage to his reputation?

    • Do you really think it is SOC to administer thrombolytics for stroke, in light of all the controversy?

    • What do you think about the neurologist's assertion that his hospital observes a 90% improvement rate in patients treated with thrombolytics for stroke?

    • Note that the daughter was upset about the Defendant's manner and the fact that he was reading a book. What do you think about this?

    • Do you want some of that $600/hr?


    GruntDoc fisked the WSJ article (link is to outside repeat of article, as the WSJ site is subscriber only)regarding thrombolytics for stroke and has a boatload of interesting comments.