The following is a true account of a medical malpractice lawsuit, as experienced and recounted by a Registered Vascular Technologist.
In mid 2001, a vascular technologist who was an RVT and a member of an ICAVL accredited laboratory, received a letter from a local attorney’s office notifying her that a lawsuit had been filed against her employer; a group of private practice cardiologists. The plaintiff’s complaint was from an incident that had occurred in September 1997. The suit was based upon a venous duplex exam oral preliminary report that was given to the ER doctor. No legal action was taken and several months later the vascular technologist was notified by her attorney that the case against the practice had been dropped, but that the plaintiff had one year to re-file.
In early 2003, the vascular technologist was notified by her attorney that the case had been re-filed, this time in a different county and she was personally named as a defendant in the case and cited for “practicing medicine without a license”. The vascular technologist had performed a stat lower extremity venous duplex exam on a young female patient. The exam was negative for DVT, but an ancillary finding of a solid mass was identified in the popliteal fossa. A verbal and written preliminary report was given to the emergency room doctor. A final report was signed, dated, faxed and mailed to the referring physician in a timely fashion. A copy of the report was sent to the emergency room triage nurse as this was the routine to ensure that no patient reports would go unread.
A year later, the vascular technologist was called for deposition. The deposition lasted approximately five hours. The only person testifying was the vascular technologist. There were two attorneys representing the vascular technologist (who were retained through her employer’s malpractice insurance carrier). There were five other attorneys present representing the plaintiff, the hospital and the three other doctors named in the suit (i.e. the ER doctor, the treating orthopedist and the plaintiff’s obstetrician/gynecologist, who was the one who initially sent the patient to the ER for her complaint of calf pain). Present at the deposition was a court reporter and a court appointed videographer. The plaintiff’s attorney started the questioning, followed by every other attorney asking their questions. The questions covered the vascular technologist’s training, credentials, experience, personal life and work history. The vascular technologist’s attorney was able to ask questions to clarify points that were brought up throughout the deposition. When all of the attorneys were finished, the plaintiff’s attorney had the right to ask additional rebuttal questions. The video taped venous duplex exam was reviewed and discussed, frame by frame. The medical records were reviewed and discussed.
Weeks later, the vascular technologist received a copy of the deposition transcript to sign, declaring that this was in fact her truthful testimony. Several months later, she was notified that her attorneys did not feel a need to settle out of court, as two of the defendants had agreed to, but that instead, her case would go to a jury trial. The date was set! There was a continuance. The date was set again. There was another continuance. The vascular technologist received a letter from the patient’s attorney requesting an out of court settlement for 5 million dollars, however the attorney declined the offer.
Finally in February of 2007, the case went to a jury trial. The entire first day consisted of jury selection. Over the next three days of the trial, the plaintiff’s attorneys presented their case. They brought in many expert witnesses to testify to the defendants’ supposed incompetence. The defendants, themselves, were called by the plaintiff to testify. The plaintiff and her family were called to testify. The entire time the defendants listened and waited for their turn. Finally on day five, the defense began its case. They called many expert witnesses to testify on their behalf. Over the next three days, all of the defendants were called to testify on their own behalf. In this particular case, many medical records experts and personnel were called.
After eight days of testimony, the case went to the jury. Two days later, the jury came back from deliberations with a verdict. All three defendants were found not guilty.
The takeaway value from this story is as follows: This was a normal venous duplex exam, with an incidental finding of a popliteal fossa mass, performed 10 years earlier. When the sonographer reported the popliteal fossa mass finding to the ER doctor, he in turn documented in his note “technician states no DVT, Baker’s cyst in popliteal area”. The patient was not followed up by her family physician for several months; when she then had an MRI and extensive workup which revealed a large malignant tumor in the popliteal fossa. The patient was treated with above the knee amputation. When the emergency room medical records were reviewed, there was a discrepancy noted between the vascular laboratory report that documented “a large non-compressible mass” and the ER physician’s hand written note that documented “technician said Baker’s cyst.” The entire case was based on the one hand written note. The ‘technician’ made an erroneous interpretation of the venous duplex exam by diagnosing a Baker’s cyst. After many hours of deliberation, the jury came to the conclusion that it was unlikely that the sonographer would have documented every piece of evidence using the word ‘mass’, yet turn around and tell the ER doctor that the patient had a cyst.
The saving grace: Documentation. The venous duplex exam was performed according to the laboratory protocol, no shortcuts were taken, the protocol followed The ICAVL Standards. The examination included all of the required images and all of the images were consistently and accurately labeled. Many additional pictures were taken of the ancillary finding and were clearly labeled, documenting a mass. As included within The ICAVL Standards, Organization, Section 4: Examination Interpretation and Reports, incidental findings should be reported.
The final report clearly documented that a mass was identified. The ancillary finding documented in the videotaped examination was labeled as mass, not Baker’s Cyst. Unfortunately, the copy of the preliminary report was lost by medical records.
After ten grueling years, the entire outcome of the case came down to documentation. The sonographer could never have recalled any of the details of this routine exam without the concise details of the medical records from that particular day in the life of a busy vascular technologist and in the end, the documentation enabled her to be found not guilty.