Medical Malpractice Insights: Brain Abscess

A healthy 24-year-old dies of a brain abscess 

What was missed? Was it negligence?

Facts: A 24-year-old male is taken to the ED by his parents after “passing out” and being “unconscious for a few seconds.” His father had just helped him out of bed when his limbs began “shaking.” He has been ill for 3 days with abdominal pain, fever, diarrhea, and vomiting, and his father thinks his son is dehydrated. The triage nurse records the event as a “seizure” lasting 7 minutes. ROS reveals back pain, myalgias, and weakness but no headache or ear pain. VS are normal with a temp of 97.3. Exam documents that he is alert and oriented but “tired appearing” and “not appearing post-ictal.” He has “severe eczema especially on the hands and arms.” Speech, behavior, and remainder of exam is normal, and GCS is 15. WBC is 22,910 with 82% polys and 8% bands with 2+ toxic granulation and 1+ Dohle bodies. Urine specific gravity is 1.02 with ketones. Urine drug screen is negative. A CT abdomen with IV contrast is normal. The patient is given Zofran for nausea and 3L of IV NS. He is also given Norflex, Toradol 15 mg, and MS 2 mg for back pain. He is able to walk independently to the bathroom before being discharged “improved” with a diagnosis of gastroenteritis. His MDM says nothing about the patient’s seizure but does state that “there is an ongoing community outbreak of gastroenteritis… and 6 patients currently in the ED with similar sx.” Sixteen hours later the patient returns comatose after a grand mal seizure at home. GCS is now 3. A different EP elicits a history of recurrent ear infections, 5 sets of PE tubes ,and some recent drainage from the left ear, confirmed on exam as a “brown drainage.” A head CT shows a left temporal mass, cerebral edema, and possible early herniation. The patient is transferred to a tertiary care hospital where an MRI reveals bilateral mastoiditis with bony erosion. He undergoes surgery but dies post-op due to brain herniation. The family contacts an attorney who asks an experienced EP to write a letter to the state medical review board and to do a case viability analysis prior to filing a lawsuit for medical malpractice.

Plaintiff:

• You never acknowledged the alleged “7 minute” seizure.
• You either didn’t read or ignored the nurse’s notes.
• You never asked about his ears and didn’t examine them.
• You paid no attention to the high WBC with a left shift, which is very unusual in viral gastroenteritis.
• Fever and a seizure in a healthy 24-year-old warrants a CT scan of the brain, not the abdomen.
• Your “availability bias” led you astray causing you not to rule out other possible diagnoses.
• Your MDM addressed your opinion but not the basis for that opinion.

Defense:

• The EP did address the seizure when he documented “not post-ictal.”
• He reasoned that dehydration and orthostatic hypotension led to a syncopal episode with limb shaking.
• A thorough differential diagnosis and the high WBC was addressed in the MDM. Not imaging the brain was a reasonable judgment call based on the lack of headache or other neurological signs or symptoms.
• The elevated WBC could be due to dehydration.
• There is no negligence, as the documentation supports reasonable judgment.

Result: The EM “expert” supported the attorney’s request for a letter to the state medical board. However, she identified Issues that would likely be raised by the defense and their experts (e.g., “judgment vs. negligence” and “causation,” or the likelihood of a better outcome with earlier surgery). The defense would hire highly qualified experts in emergency medicine, ENT, neurosurgery, infectious disease, nursing, etc., and require the plaintiff attorney to rebut them with his own contingent of experts – at considerable expense. The case would last over several years, and with 85-90% of cases that go to trial resulting in a defense verdict, the outcome was unpredictable and risky. The EM expert suggested a second opinion from another EP and/or a referral of the case to a larger law firm with more experience, deeper pockets, and greater risk tolerance. The attorney hired a second expert who was more supportive of a lawsuit. The case was in litigation for 3 years and finally settled out-of-court for an amount acceptable to the deceased’s family.

Takeaways:

• Read the nursing notes. The word “seizure” should capture one’s attention.
• Document any discrepancies between your own history/exam and that of the nurse(s). Discuss them with the nurse(s). EM is a “team sport.” Include your team.
• Pay attention to lab values, especially bandemia. If abnormal, discuss them in the MDM.
• Acute on chronic ear infection was the likely source of the brain abscess (and mastoiditis), yet the ENT history and exam were incomplete on the first ED visit.
• Good MDM is a defense against a malpractice lawsuit. One can make a wrong judgment that is not negligent, but one’s reasoning must be documented. In this case the words “post ictal” play a significant role, indicating the EP was aware of a possible seizure.
• Only 70% of patients with a brain abscess have a headache.
• The triad of fever, headache, and focal neurologic deficit occurs in less than half of patients. This patient had none of these.
• The clinical course ranges from indolent to fulminant. Symptoms are present for 2 weeks or less in about 2/3 of patients.
• Attorneys and their experts often disagree. Medical-legal cases are a high-risk enterprise for both sides.

Reference:

• Brain Abscess Clinical Presentation. Brook I. Medscape eMedicine. Updated: Oct 27, 2017. https://reference.medscape.com/article/212946-clinical