Episode 092: Communication is in the Eye of the Beholder

Speaker 1: You’re listening to Your Practice Made Perfect; support, protection and advice for practicing medical professionals brought to you by SVMIC.

J. Baugh: Hello everyone and welcome to this episode of Your Practice Made Perfect. My name is J. Baugh and joining me today for our closed claim podcast is Katy Smith. Katy, welcome.

Katy: Thanks J.

J. Baugh: Katy and I are going to be discussing another closed claim today. Katy is a claims attorney with 13 years of experience here, and I have 19, so Katy and I have seen several cases in the years that we've been here, and today we're going to discuss another closed claim. 

Through the years, SVMIC has emphasized the importance of effective communication. Physicians should effectively communicate with patients and other healthcare providers. Of equal importance is good communication with other physicians. SVMIC has had cases where physicians reported that if another physician had better communicated with them, the course of treatment would have been different. The case we're going to discuss today is one of those cases, and this case is pretty fact-intensive. So Katy, let's open up this case and find out some more of these details.

Katy: Well, this case involves a patient whose name is Jennifer Smith. She's a 33-year-old female, and her medical history was complicated. She was diagnosed with hydrocephalus as a very young child and had a right ventriculoperitoneal shunt implanted shortly after she was born. She required shunt revisions at both two and nine years of age and also as a toddler, she was diagnosed with epilepsy. Mrs. Smith began treatment with Dr. Taylor, who was a neurosurgeon and Dr. Russell, who's a neurologist both practicing in the same group in 2013 and 2014 respectively.

In November, 2013 Mrs. Smith saw Dr. Taylor for implantation of a vagal nerve stimulator to control her seizures. The procedure was performed without complication. She then began seeing Dr. Russell again, the neurologist, in September of 2014 for management of the VNS device and also medication management.

Dr. Russell prescribed Mrs. Smith and anti-epileptic in November, 2014 to reduce her seizure activity. The drug was effective, but eight months later in July 2015, Mrs. Smith began experiencing blurred vision, and this is the beginning really of the story for this patient. She returned to Dr. Russell who ordered the medication levels to be checked and told the patient to go see an ophthalmologist.

J. Baugh: And so when Mrs. Smith returned to Dr. Russell the next month for follow-up, she told the doctor of some new complaints that she had of headaches, numbness, and double vision. Now, she stated that she had seen an ophthalmologist who told her that there was quote, "Something wrong with her vision," but she couldn't give an official diagnosis.

Dr. Russell asked her office staff to request a copy of the patient's ophthalmology records, but this request was accidentally overlooked. At the same visit, Mrs. Smith also told Dr. Russell that she had been to the emergency department twice for her headaches, and that the attending physician had been worried about her shunt. Dr. Russell again urge the patient to follow-up with an ophthalmologist.

Katy: Mrs. Smith's case continued when in September, 2015 she called Dr. Russell's office and complained of these continuing headaches. The patient told Dr. Russell's office that she had been to the emergency department for these headaches and had had a lumbar puncture performed. Dr. Russell felt that the patient was suffering from low CSF headaches from the lumbar puncture. So she advised Mrs. Smith that she needed a blood patch and instructed her receptionist to schedule the patient for an office visit, a blood patch, and for labs.

However, the receptionist couldn't locate the patient to relay this information to her or to make the appointment. Two days later, Mrs. Smith's husband got in touch with the clinic and told the staff that he was taking his wife to a local hospital to get a blood patch. Dr. Russell thought that the blood patch had been performed, but found out later that it had not.

J. Baugh: So soon thereafter. In October of 2015, Mrs. Smith again returned to Dr. Russell complaining of nausea and passing out. Her headaches were severe with pain radiating down her back, right arm and leg. Dr. Russell performed a funduscopic eye exam and a visual field exam, and observed for the first time swelling around her optic disks.

She diagnosed a patient with papilledema and ordered an MRI, which showed the shunt in place with no hydrocephalus. The patient was then referred back to Dr. Taylor for evaluation of the shunt, and Dr. Russell again told Mrs. Smith that she needed to see an ophthalmologist.

Katy: So Mrs. Smith was seen by Dr. Taylor, the neurosurgeon in early November 2015 for these shunt-related complaints. She voiced new complaints to him of difficulty walking and increased confusion. Her MRI and a shunt series X-ray were negative. So Dr. Russell didn't recommend surgery except as a last resort. It seems that he was unaware of the papilledema diagnosis and so he was kind of operating in his own orbit on this shunt issue.

The next day, Mrs. Smith was seen by Dr. Russell. She ordered a CT of the cervical spine to rule out nerve impingement as a potential cause of headaches, neck pain and numbness. The CT was normal. The patient admitted that she had not followed up with an ophthalmologist as she had been instructed. So Dr. Russell referred Mrs. Smith to Dr. William Miller, an ophthalmologist who also worked in the same practice to be evaluated for her vision issues.

Dr. Miller saw Mrs. Smith in early December 2015 and he confirmed Dr. Russell's original diagnosis of papilledema. He referred the patient to the emergency department of a local hospital for imaging studies and also for possible shunt revision. Imaging studies showed the shunt was in good position with no intracranial processes, no disconnection and no complication. However, given the patient's ongoing symptoms, she was admitted for the shunt revision surgery.

J. Baugh: So Dr. Taylor, the neurosurgeon performed surgery for quote "likely shunt malfunction" on December 9th of 2015, and according to his operative note and personal reflection, the shun appeared to be working properly and was not causing any problems. However, a preoperative MRI showed some sluggish flow, so out of an abundance of caution, Dr. Taylor decided to replace the entire shunt. There were no intraoperative complications and no mention of the shunt malfunctioning.

After the uncomplicated shunt replacement, Dr. Taylor told the family that he had cut the old shunt in two places to remove it. However, the family later claimed that he had said the shunt was broken in two places. The patient recovered well from surgery and her headaches decreased. However, her vision continued to worsen and as of May 2016, she was almost completely blind in her left eye and had 20/30 tunnel vision in her right eye.

Katy: So Mrs. Smith ended up filing a lawsuit against the neurosurgeon, Dr. Taylor, the neurologist, Dr. Russell, and their clinic. She alleged that the doctor has failed to timely act upon signs and symptoms and alleged shunt malfunction in October and November of 2015 causing irreversible vision loss in both eyes. Her claim against the clinic was that it failed to have proper procedures in place to facilitate communication between physicians, and to ensure timely procurement of outside medical records.

Both of the plaintiff's experts were critical of the care and opined the papilledema should have been urgently addressed to prevent the loss of vision. The plaintiff also disclosed a practice administrator as an expert witness who stated in her disclosures that the clinic failed to have appropriate policies and procedures or a proper EMR in place to ensure Mrs. Smith's relevant ophthalmologic history was known to her providers. To ensure she was timely evaluated by an ophthalmologist or to facilitate communications between the clinic’s neurology and neurosurgery departments.

As a side note, after the lawsuit was filed and all of the patient's medical records were obtained through discovery, Dr. Russell first learned that the patient had actually not seen an ophthalmologist in 2015 as she reported to him, but she had seen an optometrist.

J. Baugh: So Dr. Russell felt that the patient's papilledema was a chronic condition rather than an acute condition, which would have been a situation in which time was of the essence. When Dr. Russell made the diagnosis of papilledema, an appointment was made with Dr. Taylor whose office is across the hall from Dr. Russell's office. Dr. Taylor testified in his deposition that he wasn't aware of the papilledema diagnosis when he assessed the patient, and if he had been aware of the diagnosis, he would have referred the patient to an ophthalmologist.

The defendants had a difficult time finding expert witnesses who were fully supportive of the medical care provided by Dr. Taylor and Dr. Russell. The potential defense expert witnesses felt that Dr. Taylor or Dr. Russell, or maybe both of them had deviated from the standard of care by not acting in a timely manner after the diagnosis of papilledema.

Another expert thought that the presence of headaches and visual changes should have been considered indicative of a shunt malformation until proven otherwise. Because the flow through the shunt was sluggish, intracranial pressure was building over time.

Katy: Our causation defense was bolstered by the fact that the patient contributed in part to her injuries because she wasn't cooperative in her care. She was also self-managing her medications. She failed to see an ophthalmologist as she had been instructed to do. She failed to take her medications as she was ordered to do, and she was generally difficult to get in touch with.

She had multiple family members making calls to the office on her behalf, and they relayed less than accurate information at times. However, it was undisputed that Mrs. Smith's vision loss was most likely caused by papilledema, which was caused by increased intracranial pressure, which caused permanent damage to the optic nerves sometime in November 2015.

J. Baugh: So now that we've talked about this fact-intensive case, let's talk about some of the lessons that can be learned from this case. If the communications between the physicians and the patient and the communications between the physician themselves have been clearer in this case, the patient's loss of vision might've been avoided.

The patient testified in her deposition that she didn't know the difference between an ophthalmologist and optometrist. And I think sometimes we get involved in the fields in which we practice and we are very familiar with terms, and we assume that everyone else is familiar with them.

Katy: I agree and patients who are lay people, sometimes don't appreciate the difference. And I think our physicians sometimes just assume that they know and they forget to ask.

J. Baugh: That's right. I know that happens with us as attorneys, we hear terms such as mediation and arbitration and we know that they're two very different things, but people who don't practice law think that they sound sort of similar and that they're both kinds of alternative dispute resolution and so they think that they're similar when they're very different.

And a physician could think, "Well, an optometrist and an ophthalmologist are obviously two different types of specialties," but someone who doesn't practice medicine may not recognize that. And so it's important to clarify that with the patient.

Katy: Yes.

J. Baugh: And explaining the differences in those terms might have improved the patient's outcome here.

Katy: Right.

J. Baugh: Making the referral to the ophthalmologist within their own clinic in a more timely manner may have improved the patient's outcome. Also, Dr. Taylor testified in his deposition that he didn't know of Dr. Russell's diagnosis of papilledema when he began treating the patient. Explaining the reason for this referral to Dr. Taylor might have also improved the patient's outcome.

And I think it's difficult in a case like this, when you have two physicians, they're with the same group, their offices are across the hall from each other to explain to a jury why one doctor did not know of the diagnosis of another doctor. And that's tough to overcome.

Katy: Oh yes. That's totally an uphill battle. Even though these physician's offices may be operating as independent practices, they're under the same umbrella of the same group. They're physically close to each other, and it's just tough to explain how you couldn't forwarded records across the hall or at least called your colleague to just say, "Hey, you know, I've made this diagnosis, I'm sending her to be evaluated." That's a challenge.

J. Baugh: Especially with the diagnosis that's as concerning as papilledema.

Katy: Right. That has an urgent, very important time situation here.

J. Baugh: That's right. If it's an acute condition versus chronic, then that's something that needs to be addressed right away. So Katy, how did this case turn out?

Katy: Well, since we're kind of battling the breakdown in communications and the patient's medical condition and her outcome, counsel determined that it was prudent to schedule a mediation to try to resolve the case and a settlement was ultimately reached.

If there had been improved communications between the patient and between the physicians, that could have improved the patient's outcome and it may have avoided a lawsuit. Or may have made the case easier to defend, or may have ultimately avoided having to settle the case.

J. Baugh: And so as we're wrapping up this episode of our podcast, a couple of takeaways that I see are that we need to try to improve communication between physicians, whether they're in the same practice or not. That information needs to go from one physician to another because we often see cases in which physicians say, "If I had just known what the other physician knew, then my diagnosis or my treatment would have been different."

And another takeaway is effective communication with the patient. Words like ophthalmologists and optometrists are very different to some people, but they sound kind of alike to other people. And so you need to make sure the patient knows exactly what it is that you're talking about.

Katy: I agree completely.

J. Baugh: Well, that wraps up our case for today. So Katy, thank you for being here today.

Katy: Thanks, J.

Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host J. Baugh. 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.