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Be alert to changing health issues with established patients.

Risk Management

Doctor Overlooks Patient's Changing Symptoms

Stacy Landskron awoke with stabbing pain in her right eye, fever, dizziness and extreme nausea at 3:30 a.m. on June 7, 2009. The 26-year-old schoolteacher just made it to the bathroom before she began to vomit uncontrollably. Stacy's husband called 911 and an ambulance transported her to Eastside Hospital.


At the hospital, the emergency department physician noted Stacy’s history included being “disoriented, meaning dizzy, can’t sit up.” This physician’s impression was syncope, vomiting and dizziness, and he ordered a head CT scan, IV fluids and anti-nausea medication. By 7:15 a.m., Stacy didn't’t know where she was and couldn't walk. Stacy was admitted, and the ED physician ordered a neurology consult. 

At 9:30 a.m. Stacy was transferred to a room. Because she was complaining of blurred vision and eye pain, Stacy’s husband telephoned her primary care provider (PCP) who instructed him to request an ophthalmology consult.

While still at Eastside hospital, Stacy was seen by neurologist Henry Nostrom, M.D., at 5:00 p.m. She had blurred vision and was seeing black spots, had a headache, and was experiencing stabbing pain behind her right eye. Dr. Nostrom completed his examination, reviewed the CT scan, and told Stacy and her husband that everything appeared normal. He further told Stacy that she needed to see a psychiatrist, but that she could go to University hospital if she really believed something was wrong. Dr. Nostrom’s complete progress note for the visit was: “Neuro vertigo. There is a big picture here, and we don’t see it. Need x → U Hosp.”

The next morning, June 8, Stacy continued to complain of pain and pressure behind her right eye. However, she was discharged home with instruction to follow up with ophthalmologist Edwin Opstein, M.D.

Patient Sees Ophthamologist and PA

The next day, June 9, 2009, Stacy’s brother drove her to an appointment with ophthalmologist Dr. Opstein. Her brother informed the physician of Stacy’s hospital stay the previous day and her complaints of headaches,dizziness, blurred vision (both distance and reading), flashing lights,floaters, and eye pain.

Dr. Opstein’s examination revealed Stacy had one-sided visual losses in each eye, the left eye worse than the right. This abnormal finding elicited no sense of urgency for Dr. Opstein. He simply wrote Stacy a new prescription for eyeglasses. Dr. Opstein asked Stacy to return on June 30, 2009, for a follow-up appointment and requested she bring with her the CT scan taken at the hospital on June 7.

Stacy’s mother drove her to the Center for Neurology and Stroke on June 10, 2009. Stacy was seen by a physician assistant (PA) who noted that Stacy’s mother had to help her walk down the hall, due to ataxia and not feeling well. Stacy had developed migratory numbness in the tongue, arms and legs by this time. The PA also noted a complete loss of vision in the left eye and blacked out areas in the right eye.

The PA’s assessment included acute headache associated with nausea, vomiting, ataxia, numbness and visual disturbance. The PA’s differential diagnosis was “viral sinusitis, intractable migraine or flare in Rocky Mountain Spotted Fever.” Treatment consisted of an injection of Toradol for pain and a prescription for Zithromax for sinus congestion. Stacy was never seen by the PA’s supervising physician.

Stacy Receives Chiropractic Adjustment; More Issues Surface

The next day, June 11, Stacy’s mother drove her to see William Zinsel, D.C., whom Stacy had been treating with the past year for various complaints, including headache and back pain. Stacy told Dr. Zinsel she was on a new medication that made her nauseous, and Dr. Zinsel advised her to follow up with her PCP. There was no notation in Dr. Zinsel’s record of Stacy’s recent hospitalization or treatment rendered by Dr. Nostrom, Dr. Opstein, or the PA.

After the exam, Dr. Zinsel diagnosed subluxations to the cervical and lumbar spine, sacrum, and pelvis. Using the diversified technique, Dr. Zinsel performed high-amplitude, high-velocity manipulations to the cervical, lower back, sacrum and pelvic areas. Although Stacy was still in pain, Dr. Zinsel merely gave her an ice pack before sending her home.

On June 12, Stacy saw her PCP and told him she had nausea, neck pain, head pain, and numbness in her left arm and leg. Yet none of her recent treaters had found anything wrong with her. The PCP noted that her left eye had difficulty tracking, but her right eye was within normal limits. The PCP referred Stacy to a different ophthalmologist.

Dissection Diagnosed

On June 13, 2009, Stacy went to an urgent care clinic with left-sided weakness that had become more apparent in the last three days, as well as facial droop on her left side. Following a CT scan and an MRI, Stacy was diagnosed with right vertebral artery dissection, probable embolic occlusion of the right posterior cerebral artery and left superior cerebellar artery. She was transferred to University Hospital.

Upon admission to University Hospital, Stacy was assigned to stroke specialist and neurologist Zane Crittenden, M.D., who noted in his records that Stacy’s eye pain began days before she was hospitalized at Eastside Hospital. Dr. Crittenden’s notes further stated that Stacy’s pain was caused by a small vertebral artery dissection, likely due to one of Dr. Zinsel’s earlier manipulations.

Dr. Crittenden believed this small dissection eventually caused a small stroke on the morning of June 7, 2009, prior to Stacy’s transport to Eastside Hospital. Dr. Crittenden also noted that the sensitivity of a CT for early ischemic stroke is only 25 percent; it will be missed in 75 percent of cases. He believed that had anyone ordered an MRI, the dissection and small stroke would have been diagnosed. In that case, Stacy could have been treated and able to fully recover before the June 11 manipulation that Dr. Crittenden alleged “did the damage.”

Patient Undergoes Rehabilitation

Stacy was transferred from University Hospital to a neurology rehabilitation center on June 18. There, she underwent intensive inpatient physical therapy, speech therapy and occupational therapy until July 22. Upon discharge, she was able to walk up to 200 feet with moderate assistance and the use of a large quad cane. She continued to have left hemiplegia, cognitive deficits, gait disturbance and deficits of activities of daily living.

After returning home, Stacy continued to receive physical, speech and occupational therapy. Over the next few months, she was able to regain most basic abilities, such as the ability to use the restroom independently, shower by herself, walk without assistive devices or supervision, and eat and drink without choking. However, Stacy’s stroke left her with various permanent physical and mental injuries, including permanent visual impairment, a left-sided facial droop, a left hand that remained permanently clenched, and a significant limp.

Before the stroke, Stacy was described as goal oriented, upbeat, energetic, intellectual, classy and charming. Post stroke—even after extensive therapy—Stacy was described as immature, unable to listen or pay attention, profane, guarded, and withdrawn.

Lawsuit Ensues

Approximately 18 months after Stacy’s CVA, Dr. Nostrom, Dr. Opstein, Dr. Zinsel, and the PA were sued for medical negligence by Stacy and her husband. Briefly stated, the plaintiff (Stacy Landskron) alleged that:

  • Dr. Nostrom failed to ensure that Stacy received a timely and appropriate stroke evaluation, including an MRI. The only patient history included in Dr. Nostrom’s progress note was “vertigo.”
  • Dr. Opstein failed to ensure that Stacy received an immediate stroke evaluation, including an MRI, in light of her numerous stroke-like symptoms. He failed to ensure Stacy received an immediate stroke work-up upon finding homonymous hemianopsia. With no history of trauma, surgery, or other eye abnormality, homonymous hemianopsia
  • is an urgent neurological finding indicative of stroke. This necessitated a referral to the emergency department or a neurologist for a same-day neurological assessment and evaluation.
  • Dr. Zinsel either knew that Stacy had multiple stroke-like symptoms on June 11 or failed to elicit information about Stacy’s previous three days of treatment.

At Dr. Nostrom’s deposition, it became apparent that he spent only 10 minutes assessing Stacy. Dr. Nostrom testified that Stacy did not provide any history of visual disturbances or impairments. Had he received this information, an MRI would have been required to rule out stroke.

Plaintiff Experts Weigh in

The plaintiff’s neurology expert opined that Dr. Nostrom had an independent duty to elicit the eye complaints, whether she volunteered them or not. This expert said it was “outrageous” that Dr. Nostrom would contend that Stacy did not complain of vision difficulties. Just two days earlier, she presented to the PCP with a chief complaint of right eye pain that was persistent and off and on for a week. Also, two days after seeing Dr. Nostrom, Stacy complained to Dr. Opstein of stabbing right eye pain. In other words, the medical records confirmed that had Dr. Nostrom conducted even a rudimentary history of recent head pain, medical problems, eye problems, or previous care, he could have elicited her eye complaints.

The opinion of the plaintiff’s expert ophthalmologist closely mirrored that of Dr. Opstein’s retained expert. Both agreed that because Stacy had a homonymous hemianopia, a reasonable practice would have been to include stroke in the differential diagnosis. Dr. Opstein should have known whether stroke had been effectively ruled out during Stacy’s recent evaluation at the hospital. Dr. Opstein incorrectly believed that Stacy’s prior CT ruled out stroke. Because of Dr. Opstein’s incorrect diagnosis,this plaintiff expert contended that Stacy’s stroke went unrecognized and untreated.

The expert consultants retained by both the plaintiff and the PA also closely mirrored one another. Stacy was having a fully treatable stroke when the PA evaluated her. A simple MRI would have confirmed the diagnosis, led to conservative treatment and enabled her complete recovery. However, because of the misdiagnosis, Stacy was sent home and went to her chiropractor the following day. Both experts agreed that this chiropractic visit was a disaster—the final manipulation caused multiple strokes, resulting in permanent brain damage. None of this would have happened if the PA would have ordered the appropriate test the day before.

At his deposition, Dr. Zinsel acknowledged that he was aware of an association between chiropractic manipulations and vertebral artery dissections, and this was explained in his informed consent document. He said he learned in chiropractic school that, in some cases, a tear of the intima of the artery could be caused by an extension of the cervical spine during manipulation. Dr. Zinsel testified that he was aware of the classic signs of a vertebral artery dissection, which include an inability to walk a straight line, slurred speech, drooping eyelids, headache, neck pain, nausea, vomiting, dizziness and vertigo. Dr. Zinsel also acknowledged that if a vertebral artery dissection was suspected, cervical manipulation would be contraindicated.

Stacy’s treating neurologist testified that Dr. Zinsel’s high-velocity manipulation on June 11 caused catastrophic damage to Stacy’s vertebral artery.

D.C.’s Defense Team Counters

The NCMIC defense team retained a chiropractic expert consultant to weigh in on Dr. Zinsel’s treatment. This expert testified that he did not necessarily agree that a patient with ataxia should not be manipulated or that ataxia could be a sign of an evolving stroke. The plaintiff’s attorney went through each sign or symptom of stroke and asked the defense’s chiropractic expert whether each was classically associated with a stroke. This expert consultant disagreed that any one sign or symptom would be indicative of a stroke. He did admit, however, that if a chiropractor suspected a patient was at risk for stroke, he or she should delay the manipulation until further testing or until after the patient was seen by a specialist.

The plaintiff’s attorney discussed at length the alleged eye pain Stacy would have had when she saw Dr. Zinsel on June 11. The expert consultant testified that there was no mention of eye pain in Dr. Zinsel’s notes. However, Dr. Zinsel admitted upon questioning by the plaintiff’s attorney that Stacy did have eye pain at the June 11 visit.

The plaintiff’s attorney also retained a physician to prepare a minimal life care plan for Stacy’s future medical care and safety and to assess economic damages. According to this physician’s analysis, this amount would range from $4,919,397 to $6,352,399, depending on whether Stacy would have worked as a special education teacher or advanced her career by obtaining her Master’s degree.

The defense retained two witnesses to evaluate the potential economic damages: a life-care planner and an economic expert. The life-care planner testified that he had no material criticism of the life-care plan, the amount of future care required or the projected cost of care presented on behalf of the plaintiff. The economic expert retained by the defense recalculated the plaintiff’s figures using his own present-value discount and testified that these were reasonable estimates of past and future damages, given the underlying assumptions and vocational opinions.

Attempts Made to Resolve Case

At that point, the plaintiff made a settlement demand on behalf of each defendant in the amount of their respective policy limits. This demand was made after seven of the 20 disclosed experts had been deposed. Since the state where the claim was brought required parties to participate in mediation, the defendants jointly responded to the plaintiff’s settlement demand with a request to mediate the case. They hoped to avoid 13 more depositions of expert consultant witnesses. The plaintiff agreed to mediate.

During mediation, the PA’s insurance carrier offered his entire limit of liability to resolve the case, which was accepted by the plaintiff. As for Dr. Nostrom and Dr. Opstein, it soon became clear that neither were making a concerted effort to settle their respected cases.

Dr. Zinsel’s NCMIC-retained defense attorney estimated the judgment value of Stacy’s claim at $1.5–$4 million, and Dr. Zinsel would be successfully defended with a zero-dollar verdict two-to-four percent of the time. His estimated settlement value for Dr. Zinsel was $500,000–$750,000.

Dr. Zinsel did not agree to resolve the claim at mediation. However, after reviewing these numbers and conferring with his defense team about the pros and cons of going to trial, Dr. Zinsel consented to settle one week after mediation ended. Dr. Zinsel’s claim resolved for an amount less than his attorney’s estimated settlement value. NCMIC spent $277,874.16 to defend this case.

The claims against Dr. Nostrom and Dr. Opstein went to trial. The jury awarded the plaintiff, Stacy Landskron, a total of $5 million, or $2.5 million from both of these physician defendants.

What Can We Learn?

By Jennifer Boyd Herlihy, Boston, Massachusetts, and Providence, Rhode Island

Complacency 

Even when a patient has had previous chiropractic care, it’s important to maintain present time consciousness. Often, a doctor can be less alert to changing health issues with established patients. This can be avoided by asking patients if anything new or unusual occurred since the last visit. In this case, Dr. Zinsel may have been able to elicit information about the hospitalization, symptoms and lack of improvement by the patient. Dr. Zinsel knew the signs of stroke and its association with Stacy Landskron’s symptoms. Thus, he might have averted this catastrophic event by referring her to treatment.

Documentation

The new patient intake forms were considerably lacking for all the doctors Stacy Landskron saw. Dr. Zinsel’s records were not comprehensive. There was no mention of eye pain in his notes even though Dr. Zinsel recalled the patient had eye pain during the visit in question. Dr. Nostrom’s documentation was no better: The only patient history recorded in his progress note was “vertigo.” The records should enable the doctor to recall the specifics of the case, months or even years after the visit.

Temporal relationships 

Fortunately, research has demonstrated that while there may be an association between chiropractic manipulations and CVAs, there is not necessarily a causal relationship between the two. This is an area where an attorney and defense experts with the right knowledge and credibility can provide appropriate and important information concerning CVAs to help overcome prejudice related to chiropractic care. In this case, the expert for the defense was able to counter the plaintiff’s contention that a patient with ataxia should not be manipulated or that ataxia could be a sign of an evolving stroke.

Multiple providers

Numerous doctors can mean specialization and excellence. In this case, however, everything that could have gone wrong with other doctors’ care did go wrong. This brought about a domino effect on Dr. Zinsel who was unaware of the patient’s prior care in the days before she sought chiropractic care. A malpractice case with several doctors can be more complicated to defend, particularly when there is finger-pointing among other treaters, such as the M.D. who was quick to suggest that the D.C. caused the patient’s dissection. Cases like this one clearly illustrate why malpractice insurance matters.

Serious outcomes

Stacy Landskron was impaired for life. This case clearly demonstrates the importance of not accepting as fact the diagnosis of another physician. In this case, multiple practitioners missed what was in retrospect an obvious condition, and one that could have been ruled out with a simple MRI.
 

Jennifer Boyd Herlihy is healthcare defense lawyer with the firm of Adler / Cohen / Harvey/ Wakeman / Guekguezian,LLP, located in Boston, Mass., and Providence, R.I. She represents chiropractors and other healthcare providers in matters related to their professional licenses and malpractice actions. The firm’s website is www.adlercohen.com.


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Examiner case studies are derived from the NCMIC claims files. All names used in Examiner case studies are fictitious to protect patient and doctor privacy.