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“Time is brain.” This was the mantra repeated by the plaintiff attorney during his opening statement in a case brought by a plaintiff alleging a delay in the diagnosis and treatment of a bilateral carotid artery occlusion. In the plaintiff attorney’s framework, the case was a simple matter. Medicine is a lot like driving a car, and just as with driving a car there are “rules of the road” and the doctors in this case “did not follow the rules of the road.” Sounds straightforward, but those of us who defend physicians know that comparing medicine to driving a car is an analogy which creates more misperceptions than insights. Fortunately, our defense team is fully prepared to counteract tactics designed to mislead jurors, and in this case, a defense verdict was obtained on behalf of our vascular surgeon as well as a discontinuance against our insured hospitalist and emergency medicine physician.

The allegation period began when the 43-year old patient presented to the emergency department at 5:43 a.m. complaining of a headache for one day along with nausea, visual disturbances, facial pain with numbness, and a pupillary size asymmetry with the right pupil larger than the left. A series of imaging studies was performed which identified abnormalities in the internal carotid arteries bilaterally, causing up to a 95% obstruction. The differential diagnosis included bilateral dissections, vasculitis, and stenosis. A neurologist and vascular surgeon were consulted by the ED physician. The hospital was not equipped to perform endovascular neurological procedures; however, the doctors involved did not feel that the patient was an interventional candidate since the vascular pathology was unclear. The physicians involved decided to admit the patient to the ICU for medical management.

Overnight in the ICU the patient developed left sided weakness and a stat CT scan revealed bilateral frontal infarcts, right more than left, along with significant stenosis of the internal carotid arteries, bilaterally. The neurologist consulted with a nearby tertiary care facility and the decision was made to transfer the patient. Shortly after transfer, the patient became unstable and he was intubated and placed on a ventilator. Next, an interventional radiologist performed catheter directed thrombolysis followed by stent placement in both the left and right cervical internal carotid arteries. Post-operatively, the patient was without spontaneous movement of his extremities. Over the following weeks, the patient’s neurocognitive condition gradually improved, and he was transferred to a rehabilitation facility. As time passed, the patient regained normal motor function but alleged mood, behavioral, and personality impairments as a result of the damages from bilateral frontal brain infarctions. The patient claimed he was unable to continue working and brought suit against the physicians involved in his care.

During the trial, a central tenet of the plaintiff attorney’s strategy was to claim that the patient should have been transferred to a tertiary care facility much earlier in the course of care. The attorney argued that an earlier transfer would have allowed the patient to receive improved care because the receiving facility had a neurological ICU as well as neurosurgical and interventional radiology services. In response, the defense was able to show that our physician, being a consulting vascular surgeon on the case, discharged his duty by reporting his findings and recommendations to the attending physician, and made appropriate suggestions for further treatment. Second, in contrast to the “rules of the road” analogy made during plaintiff counsel’s opening argument, the etiology of the patient’s condition was unclear, and there was no reason to conclude that medical management was inferior to an interventional approach. Additionally, in cross-examining the plaintiff’s expert witness, defense counsel was able to elicit from the expert that it was appropriate not to transfer the patient prior to the patient’s deterioration.

After deliberation, the jury determined that our vascular surgeon had not departed from the standard of care in this case and a defense verdict was rendered on his behalf.

For the neurologist who was not insured by us, the jury determined that he had departed from the standard of care and awarded the plaintiff $4.1 million. Because of an agreement between the neurologist and the plaintiff prior to the jury’s verdict, the neurologist was not obligated to pay the full indemnity identified by the jury.

**Although the disposition of this claim predates the formation of EmPRO, the management of the claim was handled by EmPRO’s management company (PRIMMA, LLC). To learn more about the EmPRO story, click here.