Medical Malpractice Insights: When is a migraine not a migraine?

Here’s another case from Medical Malpractice Insights – Learning from Lawsuits, a monthly email newsletter for ED physicians. The goal of MMI-LFL is to improve patient safety, educate physicians and reduce the cost and stress of medical malpractice lawsuits. To opt in to the free subscriber list, click here.

Chuck Pilcher, MD, FACEP

Editor, Med Mal Insights

When is a migraine not a migraine?

43-year-old male dies of brain herniation 5 hours after clinic visit

Facts: A 43-year-old male is seen by a PA at a walk-in clinic complaining of headache, nausea/vomiting, and difficulty talking. He reports 4 severe headaches requiring treatment in the past year: the current one is his worst yet. His wife tells the PA that she thinks the headaches are stress related. Exam documents that he “staggered in from the waiting room supported by his wife,” is “moaning in pain” on the exam table and responds to questions inconsistently and with only slow nodding or head-turning. He is treated with ketorolac and promethazine and re-examined 40 minutes later. He is now sitting in a chair with his head lying on the exam table and does not respond to questions nor open his eyes. His pupils are recorded as “unequal, left slightly larger than the right.” He requires a “2 person lift to get him to stand and 2 people to keep him upright.” The PA’s assessment is “not a typical migraine headache” and notes that it might be related to “chemicals from the patient’s work as an exterminator.” He considers sending him to the ED for further evaluation, but the patient’s wife prefers to take him home “if you can just give him something to help him get some sleep.” He is discharged, goes home, and lies down in bed. Five hours after arriving at the walk-in clinic, his wife finds him blue and apneic. An autopsy shows uncal herniation from a 4.5 x 6 cm meningioma. His wife consults an attorney.

Plaintiff (Wife):  I knew this was not a typical headache. Even the PA knew that. The PA also knew he couldn’t stand or walk by himself and couldn’t even talk right. He never told me that my husband had unequal pupils. Had I known that was a bad sign, I would never have taken him home. I depended on him. Why did he let me take him home?

Defense: This record was reviewed at the request of a plaintiff attorney by experts in neurology and primary care to assess the viability of a lawsuit. The case never proceeded to eliciting defense opinions, but the plaintiff experts offered defense arguments (below).

Result: The plaintiff experts agreed that the PA’s judgment was clearly negligent in not referring the patient to the ED. However, they both believed there was inconclusive evidence of causation, i.e., the uncal herniation due to the growth of the meningioma was already occurring during the clinic visit. Even immediate surgery was unlikely to result in survival. In addition (and an unfortunate reality of our med mal legal system), the patient had a spotty work history and was frequently unemployed. The amount of damages recoverable were insufficient to justify the risk of a lawsuit that, according to the plaintiff attorney’s own experts, might well be unsuccessful. The attorney elected not to file a lawsuit.


  • This was clearly a tragic case of delayed diagnosis.
  • Discharging this patient was clearly negligent, but we cannot depend on the vagaries of the legal system to keep us out of court.
  • This was another bullet dodged on a technicality.
  • Listen to your gut. If you find yourself using the word “atypical,” clearly document why you have exhausted all other options in the differential.
  • We see many, many headache patients. Be alert to those who have red flags, e.g., inability to speak, stand or walk, especially after treatment. Unequal pupils are the reddest of red.
  • Previous visits for increasing headaches might well have been amenable to a more viable lawsuit.
  • In some states a claim for “loss of chance” or “loss of opportunity” can be an option when a diagnosis is delayed. That approach is rarely successful.
  • The wife in this case clearly carries a lot of guilt and rightfully wishes she would have had more information with which to make a better decision about taking her husband home.
  • See more “dodged bullet” cases like this in the September, 2016, issue of Medical Malpractice Insights.

Reference: Meningioma. Haddad G. Medscape eMedicine. Updated: Nov 07, 2018.

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