Legal Pearls: Poor Communication and Information Gathering
In this Legal Pearl, we examine a case where numerous mistakes were made, including failure to order necessary tests, failure to review a patient’s record thoroughly, and failure to timely diagnose HIV.
Clinical Scenario
The patient had been going to the outpatient clinic affiliated with a local hospital for his regular healthcare since 1996, when he was in his mid-20’s. In the fall of 2006, he was treated for depression by a psychiatrist and a licensed social worker at the clinic. The social worker noted in his record that the patient was a “somewhat closeted gay man who is not really out to his family,” and that he was experiencing stress as a result of attending law school at night while working as a paramedic during the day. The psychiatrist also noted that the patient was depressed due to sexuality issues and that he was “quite lonely due to his sexual orientation.”
Later that fall, the patient went to the urgent care at the clinic due to concern about a canker sore in his mouth following some sexual activity. The physician assistant treating him briefly discussed STI prevention with him and noted in the file that the canker sore did not appear to be herpes.
In May of the following year, the patient was seen by his primary care physician at the clinic. The patient told the doctor that he had been experiencing joint stiffness, aches, and a scattered rash over his abdomen and extremities. The doctor suspected a viral infection and told the patient that he would check Epstein-Barr viral antibodies. He was prescribed an antibiotic and sent home.
Three days later the patient returned with a new concern – facial numbness and the inability to shut his left eye. The patient was also noted to have a facial droop. The patient was diagnosed as having Bell palsy, and was told to call his primary care provider the next day for results of a Lyme disease test.
The results of the Lyme test were negative, but his problems did not improve and he returned, now with bilateral facial drooping. Another doctor at the clinic suggested an HIV test, noting that his symptoms were suggestive of HIV infection. The patient agreed and signed the consent form for the HIV lab test.
Simultaneously he was transferred to the neurologist at the clinic for more specialized care. By this point, the patient’s facial problems were causing difficulty with speech. He was increasingly depressed–as a third-year honors law student and an editor of the school’s law journal, the ability to think and speak clearly were essential.
The neurologist examined the patient and noted that the patient had presented with what appeared to be a viral illness with initial unilateral facial weakness and now bilateral facial weakness of unknown etiology. He wrote in the patient’s file “there is no risk of HIV, but testing will be considered,” and he noted that the patient might have “an isolated/limited form of Guillain-Barre syndrome.” He also noted that the workup should include a brain MRI with contrast and a lumbar puncture. The patient was taken for the tests, after which the neurologist discharged him home with a prescription for prednisone, and told him to call his regular primary care provider for the test results.
The patient called and was told his tests were normal. He assumed this meant the HIV test as well, but unbeknownst to the patient, the neurologist had cancelled the HIV test, believing it to be unnecessary.
While the patient’s facial weakness improved, he began experiencing from other ailments, including painful urination, diarrhea, and shingles. Over the next 3 years, he repeatedly returned to the clinic and saw his prior doctors and other healthcare practitioners. Blood tests were ordered, but no HIV testing was performed. By 2010, the patient was experiencing cognitive deficits, had lost a significant amount of weight, and was beginning to have difficulties walking. He had graduated law school and landed a prestigious job, but his health issues and cognitive decline had forced him to resign, just when his career should have been getting started. The patient finally sought help from another medical institution. There he was asked whether he had been tested for HIV and he replied that he had, but the test results had been negative. Doctors recommended that he be retested. After the testing, he was informed that he had HIV. His HIV had progressed to AIDS as a result of not getting the proper treatment. When he queried the clinic about his initial HIV test results, he discovered the test had never been done. The patient contacted a plaintiff’s attorney and sued the clinic, his primary care provider, and the neurologist.
The Trial
The case went to a jury trial. The jurors heard about his promising, yet already dashed, legal career. The medical records were introduced into evidence and showed that the doctors should have known about the patient’s sexual preferences based on the notes from the social worker and psychologist and should have considered HIV testing. The records also indicated that the patient worked as a paramedic while putting himself through law school. As a paramedic, he was also exposed to bodily fluids that could carry HIV, and thus there was a second good reason for having him tested. The consent form for the test, signed by the patient, was also in the records.
The physicians could come up with no excuse for this oversight other than their high work load, and the lack of time to read years’ worth of medical records of a patient. In hindsight, when the case finally went to trial, the neurologist was unable to explain why he had automatically rejected the idea that the patient’s problems could be caused by HIV.
The defense attempted to argue that perhaps the patient had not had HIV in 2007, but had developed it in 2010, but the jury did not buy this argument. They found for the plaintiff and awarded him over 18 million dollars.
The Takeaway
Aside from the error of not reading the records, the physicians did not communicate with each other—the doctor who suggested the HIV test never followed up with anyone, and the neurologist never informed the primary care provider that he had declined to order one.
And finally, all the doctors ignored the CDC’s recommendations, which since 2006 have stated that all persons aged 13–64 years should be screened for HIV at least once, and that persons at higher risk for HIV infection, including sexually active gay, bisexual, and other men who have sex with men, should be rescreened at least annually.
Bottom Line— Patient records are there for a reason. They contain information – often very valuable information – providing clues to a patient’s diagnosis. Without carefully reviewing the records, especially in a complex case like this, an important diagnosis can be overlooked, as it was here.