Top 25 Medical Malpractice Cases of a 25 Year Career – Epidural Abscess
Medical malpractice cases are very complex.
In this series of articles BC and Alberta personal injury and medical malpractice lawyer Angela Price-Stephens describes her top 25 notable medical malpractice cases of her 25-year career to date. Her selection of cases is a representation of the breadth of her experience, the complexity of cases, the twists and turns in the evidence and the dramatic benefit to her clients and their respective families by successfully pursuing their claim with Angela and her team.
Angela has litigated cases across Canada and England and Wales. The names and distinguishing details of the cases referred to in this series of articles have been changed to protect the client. In all cases of settlement for medical malpractice the lawyers for the defendant healthcare providers insist on a confidentiality clause in which the existence of a settlement (payout of money to the former patient, irrespective of whether an admission of liability was made) must remain a secret.
In the sixth case in this series Angela reviews the case of Ted who had the traumatic, near fatal and life changing event of a missed epidural abscess. The significant delay in diagnosis resulted in quadriplegia and permanent chronic pain.
Ted was a 36-year-old man who had fought drug and alcohol addiction since his young adult years. He had been sexually abused as a child and substance abuse was used to dull his emotional pain. Despite his addictions, Ted had travelled with friends, enjoyed playing his guitar, writing music and in the two years prior to the index events, he had remained clean and sober and was working two part time jobs.
One evening in early Fall, Ted noticed a boil on the back of his neck. He assumed it was a spider bite. He sought medical treatment at the local emergency room a few days later as the boil grew. The emergency room physician lanced the boil and removed what was described as a “cottage cheese” discharge. The wound was swabbed, and the sample sent to the lab for assessment. In the meantime, Ted received his first IV antibiotics before being discharged, to return the next afternoon. He was told he would likely receive five days of IV antibiotics – requiring him to come back to ER five consecutive days. He was given morphine for the pain.
Ted received the second IV antibiotics the following day, and the third the day after. When he returned for the fourth day, he was told that the swab had demonstrated that the infection was ‘MRSA’ and that the antibiotic would be changed. Two days into the change in daily IV antibiotics Ted was feeling much better. He did not return to complete the IV antibiotic treatment. At discovery, Ted admitted that he knew the treatment was not completed.
Ten days after the last IV treatment Ted awoke with severe neck pain that radiated into his right arm. His head was turned to the left side and he could not move his neck or arm due to the severity of the pain. Ted went back to the emergency department. He was examined and a very thorough history was taken by a young resident. Ted disclosed his addiction and sobriety and the recent repeated attendance for and infection and antibiotics. Ted did not report the infection as ‘MRSA’ as he had no understanding of its significance or consequences. The previous ER records were available to the resident, had he decided to look. Following the resident’s detailed assessment, the attending consultant examined Ted. The doctor advised Ted it was likely a muscle strain, gave him some morphine and told Ted to come back ‘if things got worse.’
Ted returned home and dropped into bed. His pain remained severe, but the morphine had taken the edge off which allowed him to sleep. He awoke the next morning in considerably less pain but feeling weak and with little strength. He described the feeling as if he was coming down with the flu. He was relieved the pain had improved. He called his employer to tell them he was ill and would not be in that day. He took the morphine pill he had been given at ER the previous day and slept all day. When he awoke in the early evening Ted panicked to find he could not move his legs. He shouted for help. His friend called 911 and the paramedics arrived shortly thereafter. The clinical records demonstrated gold standard care as he was taken to emergency, comprehensively examined and diagnosed with a very large epidural abscess. Ted was within a few hours of death as the paralysis ascended to his chest, impairing his breathing. He was ventilated for several days and his life hung in the balance.
Ted never regained the use of his legs and was neurologically impaired from T4 down, losing bowel, bladder and sexual function. He lost the strength and power in his arms requiring an electric wheelchair. He was immune compromised, suffered with regular urinary infections and autonomic dysreflexia. Two years later he was still in severe nerve pain that he described as ‘dogs gnawing at this flesh’. He greatly missed playing his guitar and writing music, an activity in which he had found solace during his periods of sobriety.
The MRSA infection in the neck boil had entered the blood stream. The infection settled in the spine and over the following 10 days grew larger pressing against the nerves that innervate the neck and arms. Initially the pressure caused severe pain. As the pressure grew greater it caused paralysis and cut off the feeling, hence the sudden loss of pain and feeling of weakness which first developed in his legs and ascending the spinal column, causing respiratory failure.
When in Doubt, Blame the Patient
There were several factors that the lawyers for the doctors tried to use against Ted.
• his addictions
• his failure to complete the antibiotic treatment
• his failure to return to the hospital when his symptoms worsened
With careful use of expert evidence and preparation for discovery, Angela turned all these factors in favour of the client’s claim.
Ted had been honest about his addictions, disclosing his prior use of drugs and alcohol at every hospital visit. While the defendants tried to use this against him, suggesting he brought this problem on himself, Angela produced evidence that epidural abscesses were more common in the drug addicted population and hence epidural abscess ought to have been included in the original differential diagnosis and excluded by imaging. A simple x-ray at the emergency room when Ted presented with severe pain would likely have shown an abnormality which would have indicated further tests, leading to a timely diagnosis of epidural abscess.
At discovery Angela established that not one of the treating professionals had informed Ted that MRSA was a more serious and harder to treat infection than many infections and that the initial advice of ‘5 days’ of antibiotic treatment only started on the first day of the ‘correct’ or second antibiotic and that given the MRSA infection it may require a longer duration of treatment.
Ted was also honest about admitting he knew he had not completed the antibiotic treatment. Although he originally felt shame with this admission, preparation for discovery taught him to accept that his lack of knowledge was not his fault – he had no reason to know what MRSA was, or how serious it could be. No one had told him. With this preparation, he was able to be forthright in his evidence, without being defensive himself.
With good preparation Ted was also able to explain why he did not return to the hospital: he did not consider the reduction of pain and feeling of weakness to be a ‘worsening’ of his condition. With the benefit of hindsight during his prolonged and painful rehabilitation he realized this was a mistake and his level of guilt had grown out of all proportion. Why had he not returned? He could have avoided this permanent disability.
Just as we cannot judge a doctor’s care with the benefit of hindsight, so we cannot judge the patient’s actions with the benefit of hindsight. Ted had no medical training, and no one had told him what symptoms to look out for. All he knew was that a reduction in pain was a good sign.
This claim was hard fought by the doctors’ lawyers. Even with clear evidence of breach of standard of care and strong evidence on causation (demonstrating an earlier diagnosis would likely have spared Ted from pain and disability) compensation offered was limited. Unbeknown to defense counsel Ted had lapsed back into cocaine use as an escape from the pain and despair. Angela put additional supports in place, changed Ted’s care givers (who could have potentially witnessed the drug use) and found excellent witnesses to speak on Ted’s behalf – including his AA sponsor who is a well-known and successful commercial realtor. By convincing his sponsor and other key witnesses to testify on Ted’s behalf Angela demonstrated that the claim was not going to be bought off for a modest sum – there was good evidence to support Ted having turned his life around before the missed diagnosis.
Ted’s claim was settled for a large sum sufficient to take care of his extraordinary medical needs, house him permanently in a modified home and provide a good income for life.