By: Robert Kornfeld
A 57 year old teacher, who taught English as a second language to in a local community college in eastern Washington, presented at a local hospital shortly before Christmas with complaints of headaches and nausea. A studies of her head by CT scan were ordered and read as normal by a general radiologist, not a head and neck radiologist.
The following week she returned and was admitted because she was not improving and felt like she must have had the flu. An MRI scan of her head which was equivocal but again read as normal by the radiologist’s partner, another general radiologist. After two more days of treatment and with her clinical symptoms unabated, principally, a third nerve palsy with ptosis, with her left eye almost completely shut, the attending neurologist ordered an MRA to “rule out” an aneurysm. Despite the clinical signs and symptoms of an aneurysm and classic signs of a third nerve palsy caused by an expanding aneurysm, after the MRA was read as negative by the first general radiologist who read the CT scan, the patient was discharged and told to follow up in two weeks with her general doctor.
On January 1, five days later following her discharge from the hospital, our client suffered a massive intracranial hemorrhage and nearly died. She was air lifted to a major hospital where she underwent surgery and clipping of a posterior communicating aneurysm by a neurosurgeon to stop her bleeding. This young teacher suffered a stroke, survived, but is now disabled.
Aneurysms
An aneurysm grows when there is a breakdown in the vascular wall of an artery in your brain. Like an bubble that forms on the side of a tube inside your bicycle tire, an aneurysm grows as the blood places pressure on the vascular wall of the artery. Typically an aneurysm does not grow over a ten day period but develops over many months or years until they burst like the sidewall of your bicycle tire when under the right amount of pressure.
Investigation
When this case was referred by another lawyer and the history was given, things did not smell right. One cannot have a normal MRA of the brain one day and then suffer a massive hemorrhage from an aneurysm 5 days later. This made no sense to me. Aneurysms simply do not grow in such a short period of time and then explode. Something had to have been missed by the radiologist in reviewing one of the scans over the last 10 days. I agreed to take a look at the case.
Forensic consultation with physicians
I asked the sisters of my single 57 year old disabled client to provide me with her medical records, particularly the scans and admission and discharge summaries for both visits at the local hospital in eastern Washington. Fortunately the films and medical records were provided without starting a guardianship.
I sent the films to Dr. Arthur Ginsberg of North Seattle who read the films and reported that in fact, “Yes”, the MRA showed an aneurysm. He stated the patient should never have been discharged, but instead the patient should have had the aneurysm clipped or coiled at the hospital or should have been transferred to Spokane or Seattle to a neurosurgeon for clipping or interventional neuro-radiologist for coiling of her posterior communicating aneurysm. [1]
The next step was to consult with an interventional neuroradiologist who agreed to review the films “off the record”. He confirmed the opinion of Dr. Ginsberg and emphasized that there was plenty of time to clip or coil her within 5 days of the date of her discharge from the hospital before the fatal day of her bleed. Both reported that her treatment would have been on a non-emergency basis with this 5 day window before she suffered from her intracranial bleed. In fact they all suggested that, more probably than not, she would have had no adverse cognitive effects from the aneurysm had it been timely treated. [2] She would have been back at work teaching and living independently.
Fortunately, I was able to retain a local neurosurgeon Dr. Peter Balousek who was outraged by this treatment and negligent reading of the scans. He provided a declaration as did Dr. Ginsberg and three radiologists, two of whom were neuro-radiologists, and one of whom was a general radiologist. All provided declarations regarding standard of care and causation, plus the standard certificate of merit declaration prior to the recent case which suggested that one is no longer required. One of the radiologists was Dr. Ken Maravella.[3]
All parties eventually agreed that the attending radiologist on staff at the eastern Washington hospital should have seen and made the diagnosis, particularly in light of the neurologist’s instructions to rule out an aneurysm and in light of the patient’s clinical presentation suggesting third nerve palsy upon admission.
Unfortunately the radiologist, who was a general radiologist and not an imaging specialist, offered and tendered policy limits of $1,000,000. Plaintiff could not accept the tender because release of the radiologist an agent of the principal, the hospital, releases the principal-hospital. In this case there was a strong agency relationship. The radiology group, in which the negligent radiologist was an employee, was the only group of radiologists retained by the hospital to scan hospital patients and provide all radiology services for the it at its hospital, while using hospital equipment, billing and tech support. We could not release the offending radiologist because this would be a release of the principal, that is, the hospital. A claim was made against the hospital to recover compensation for the client over and above the one million dollar policy limit. This offer was on the table for well over a year before mediation.
Mediation
Our client is now disabled 24-7 and can partially live independently for a few hours at a time but she needs assisted living, planning, prompting and care for the rest of her life due to her brain damage caused by the stroke.
As in most aneurysm cases, a life care plan and evaluation of the patient’s home and support was necessary, particularly since she was not married and had no responsible family members to care for her.
My firm hired a life care planner John Fontaine of OSC in Bothell to evaluate the cost of her future life care plan and an economist Bob Moss to evaluate her wage loss and future economic expenses of her life care plan, medical and support.
The patient had incurred over $800,000 in medical expenses. The insurer of the patient paid out about $462,000 and was asserting a subrogation and reimbursement claim for those monies at the start of the case. The client’s wage loss and future care totaled about $700,000. In Washington based on the June 2006 modifications to the health care statute, at trial the alleged negligent health care providers are able to present evidence and show the actual cost paid for medical care by all subrogated carriers and not just the amount billed, all of which was designed to sidestep collateral source case law. In negotiating any medical malpractice case, we all need to be prepared to provide the actual subrogation claims and amounts paid, not the amount billed.
Despite a disabling injury, the difficulty with the case was that the client had a remarkable recovery, perhaps the best I have ever seen from a subarachnoid hemorrhage. She looked normal. She walked, talked and appeared just fine for a 5-10 minute conversation before she would begin to lose track of what the discussion involved. Our client had difficulty remembering her own telephone number and could not make a call on her cell phone even if you provided her with the number. She could not figure out how to dial a number unless it was programmed into her phone. Further, she would not admit anything was wrong with her and denied she was disabled or injured. Nonetheless, her doctors refused to allow her to drive because she was cognitively impaired and suffered from a visual field deficit in one quadrant. This visual field deficit was arguably caused by the pressure on the third nerve and not by the bleeding and stroke she suffered after her bleed. The hemorrhage caused her cognitive impairment. However, the visual field deficit was caused by the natural progression of the growing aneurysm before it should have been timely diagnosed. Hence a causation issue in the case.[4]
The case settled at mediation for $1,900,000 new money and a waiver of the $462,000 medical lien plus payment of all SGAL and special needs trust fees, costs and expenses by all defendants. Naturally due to a confidentiality agreement, discussion of the parties is not possible. It is anticipated that with a special needs trust and a structured settlement through an annuity held through this special needs trust plus additional cash, the client will be able to continue to receive her DSHA benefits from Washington since there will be no constructive receipt of the settlement funds. This approach to handling settlements of catastrophically injured patients is a vehicle which is to be considered for all who are seriously injured in a medical negligence case by the fault of a health care provider.
Rob Kornfeld of Kornfeld, Trudell, Bowen and Lingenbrink of Kirkland, Wa. represented the patient. Feel free to email questions to Rob@Kornfeldlaw.com
[1] Coiling is a procedure where the interventional neuroradiologist electronically passes a platinum coil through the femoral artery and guides it up to the brain and into the correct location of the bleeding aneurysm. By sending an electronic charge, the coil is unwound into the aneurysm and the blood occludes around the coil causing the hemorrhage to stop. Coiling is a noninvasive procedure in contrast to clipping where a neurosurgeon opens the brain to “clip” the aneurysm.
[2] Actress Sharon Stone and ex-Seattle Mariner John Olerud both have had aneurysms timely treated without disability. In fact, because of the aneurysm, John Olerud starting to wear a helmet out in the field when playing first base and not just at bat.
[3] To show the strength of the Plaintiff’s case, we had a third radiologist, noted defense examiner and expert Dr. Peters even agree that this was a case of real negligence and medical causation. This seemed to get their attention.
[4] Dr. Steve Hamilton a local Seattle neurophthalmologist would have testified that even if the aneurysm was timely treated, she might well have been left with a partially drooping eye lid caused by the third nerve palsy as the aneurysm expanded before its massive bleed.
