Our client, a 68-year-old active man, still gainfully employed, sustained injuries because of negligent care provided by an emergency medicine physician. The negligence occurred at the emergency room of a Chicagoland hospital.
Our client was taken by his wife to a care center. He had a two-day history of sore throat which was getting worse. Upon presentation to the care center, he was found to have fever of 102.3. He was examined by an internal medicine physician, who recognized that he had a fever, oropharyngeal edema but he had pain out of proportion to observable physical signs. In particular, he did not have tonsillar abscesses nor posterior oropharyngeal edema. Given his presentation, the doctor was concerned that our client may have a retropharyngeal abscess (“RPA”). An RPA is not visible to the naked eye; it forms in the soft tissues behind the throat and can cause death from sepsis and septic shock if not diagnosed and treated. RPA’s are rare and the fact that the doctor was concerned for its presence (he was correct) should have set off alarm bells. The doctor understood that to rule in/out the presence of the RPA, a CT scan would be necessary … the care center did not have a CT scanner on premises. He advised our client to go directly to the hospital for further diagnostic work up and treatment.
The doctor contacted the emergency room at the nearby hospital and advised the emergency room physician, that our client would be coming to the ER directly. In that phone message, the doctor advised that he was concerned about the presence of an RPA and that our client had “questionable trismus”. Trismus is pain and difficulty opening one’s jaw and it is a hallmark of deep neck infections like RPA. The doctor at the care center administered extra strength ibuprofen and discharged our client, with instructions for his wife to drive him to the nearby emergency room. They arrived at the emergency room approximately 30 minutes later.
Our client was attended to by defendant, an emergency room physician. Said doctor testified that he had read the phone call note and he had read the care center’s note from the urgent care visit before seeing our client. Once in the emergency room, our client was started on IV fluids and IV Decadron, a steroid. Given the earlier ibuprofen and the subsequent fluids and the Decadron, our client began to feel better, and his fever reduced. While the defendant emergency room physician agreed that, to rule in/out an RPA, a CT scan of the neck would be required, he diagnosed our client with tonsillitis. He never ordered the necessary CT scan; he prescribed oral antibiotics and discharged our client home.
The defendant doctor admitted at his deposition that it is likely that the IV fluids, IV steroids, and extra strength ibuprofen would make our client feel better but that none of those therapies would treat an RPA. He also agreed that an RPA can cause death if it is not treated. Additionally, he admitted that he had never treated a patient with an RPA so he would not have experience to rely on in determining whether the signs and symptoms of an RPA were present in our client. Rather than taking a reasonable approach and heeding the concern of the care center physician, the defendant emergency room physician defaulted to a diagnosis of a benign condition as opposed to ordering a non-invasive CT scan. He attempted to justify this by stating a CT scan is a test using radiation and the IV contrast could be dangerous for a patient with diabetes. However, such an argument is hollow. There is no evidence that our client ever had significant exposure to x-rays or CT scans and modern contrast dyes are used routinely with diabetics. When balancing his concerns for the CT scan versus the damage an undiagnosed RPA can wreak, his testimony was highly self-serving.
The next day, our client returned to the ER, about 24 hours after being discharged by the defendant emergency room physician. On this visit, a different emergency physician ordered a CT scan of his neck and the RPA was diagnosed. This doctor testified that based on his reading of the notes the day before, our client’s condition had worsened. He was seen in the ER by otolaryngologist, who indicated that our client needed to be taken to surgery immediately. Our client was in the operating room within 3 hours of arriving at the hospital.
According to one of the defense experts, the treatment prescribed for our client the first time he went to the emergency room would not treat the RPA and the RPA could expand and worsen over 24 hours. While the defense expert would not say the RPA was present the day before, he would not say that it was not. Additionally, he noted that a phlegmon (pus within tissue) could have been present which if not treated with IV antibiotics can lead to an abscess. Importantly, when this defense expert was asked to assume that the defendant’s physical exam findings were correct, he testified with those exam findings, he would have ordered a CT scan. No expert has testified that the RPA was not present on the first visit to the emergency room, when our client was being treated by the defendant emergency room physician.
An RPA is a medical emergency; tonsillitis is not. It was our contention that a jury would clearly understand that when an emergency room physician knows a life-threatening infection is a possibility, it is a deviation to default to the diagnosis of tonsillitis without ordering a simple test to confirm his diagnosis.
The RPA from which Mr. our client suffered had grown into a multiloculated infection that required extensive exploration and drainage. Because of the extensive nature of the RPA by the time it was diagnosed, the surgeon advised our client that recovery could be very difficult and long. He was correct. As a result of the RPA and the emergent surgery to address it, our client sustained a pharyngeal perforation; required intubation and ventilatory support; a tracheostomy; and required a gastrostomy tube to be fed. He was returned to surgery on four other occasions because of recurring abscess infection and the need for tracheostomy and gastrostomy. He spent 28 days in the hospital; 18 of those days were in the ICU.
Prior to being diagnosed with the RPA, our client was active and employed. He enjoyed his job working in the nuclear medicine lab at a local hospital and had no plans for retirement. Since this incident, our client has been described as weak, fatigued, irritable, with poor concentration and attention. In short, he is not the same man he was and has never returned to work.
One of our experts, a physiatrist, testified and opined that our client, given his age, has sustained a permanent disability because of these serious complications and long-term hospitalization. He was terribly ill following the surgery. Indeed, even one of the defense experts, an ENT, described our client’s post-operative course as “atypical.”
Plaintiff’s expert ENT said that if the condition had been diagnosed a day earlier, as he believes it should have been, our client would have remained in the hospital for 2 days and most likely would have recovered without complication. Instead, our client remained intubated and immobile for over two weeks. His family described him as being profoundly sick, with tubes and wires everywhere … “he looked like he was dead.” His recovery from the RPA was complete. The residual of that treatment, though, left him unable to complete the physical tasks of his job and so he had to retire. While he drives, he feels it is safer if his wife does most of the driving. His diminished physical capabilities are permanent. Importantly, defense expert physiatrist agreed that our client is disabled.
Plaintiff’s extended hospitalization and care at the hospital resulted in hospital bills totaling more than $340,000. He was forced to retire from his job that was paying him approximately $100,000 per year.
After expert discovery was complete, we made a large demand to settle. In response, the defense team of attorneys requested a mediation. The case was resolved at the mediation and justice was delivered to our client.
