Medical malpractice cases involving a stroke can be a challenge. Stroke cases are difficult to prove. Can they be a case? Yes.This post is for lawyers who are getting stroke misdiagnosis cases but do not know whether the claim is viable. There are common threads that run through the most successful stroke misdiagnosis/failure to treat cases. Cases that result in a settlement or a jury verdict for the plaintiff are usually one of these two breeds: Failing to prevent a stroke and failing to treat a stroke once it has occurred.
What is a stroke?Strokes and other cerebrovascular diseases are the third leading cause of death in the U.S. behind heart disease and cancer. A stroke is the interference of the normal circulation of blood flow to the brain. The circulation can be disturbed by a clot or a hemorrhagic process. The latter involves blood leaving the blood vessel and traveling to the space surrounding the brain or inside the brain substance (intracerebral hemorrhage). There are also cases where the clot forms in the cerebral veins, causing cerebral venous thrombosis. Approximately 7 out of 8 strokes are ischemic. This means there is a lack of blood flow to the brain. This is usually from obstruction from a blood clot or narrowed or closed artery. The most common cause of stroke is atherothrombosis – the combination of atherosclerosis with superimposed thromboembolism (clot) arising from the precerebral and cerebral vessels.
Failing to prevent a strokeThese kinds of stroke cases involve patients at high risk of stroke because of high blood pressure, atrial fibrillation, diabetes, etc. Many of these patients should be on Coumadin, Plavix, or Heparin. When evaluating a stroke case, you always want to ask if the patient was on one of these medications before the stroke and if the medication was altered before a stroke. For instance, for certain dental procedures, some dentists will tell a patient to stop taking Coumadin 5 days before the procedure. This subjects the patient to a higher risk of stroke. This might be a case. Some patients have to be bridged, meaning they need to stop Coumadin 5 days prior to the procedure and take a dose of heparin and then titrate back on Coumadin following the procedure. If the stroke happened during this period, it might be a case, if the proper bridging protocol was not followed. Keep in mind, just because a stroke occurs doesn’t mean there was malpractice. Sometimes the protocol is correct, and a stroke occurs, anyway.
Failing to treat a stroke once it has occurredOnce a stroke is occurring, there is a brief window for treatment. Many malpractice cases involving a failure to treat a stroke are won by doctors and hospitals; not because there was no negligence, but because the jury finds that even if there was negligence, it was too late to save the patient from harm or death. Successful treatment depends upon the location of the clot. Certain locations in the brain, for instance, are not easily reached, even with the best clot-buster medication. Once a stroke is occurring, Coumadin or Heparin cannot dissolve the clot. It can merely prevent future clots. Clot busters sometimes are effective, sometimes not. As a result, these cases are difficult to prove. A typical fact pattern you might see from a caller is a patient who had a stroke, got to the hospital, and was administered a clot buster. For a time, it looked like they were getting better, but then the next morning they decompensated and now cannot walk or talk. Be careful with cases like these. The damage from a clot sometimes does not manifest itself until several hours after the damage has occurred. Therefore, it might seem like the patient is better when they really are not. These kinds of cases are very rarely malpractice. Also, sometimes there are cases where a patient is having multiple clots. Sometimes these cases are not preventable, even with Coumadin and/or Heparin.
Filing to administer tPAMany ischemic stroke medical malpractice cases involve failing to use tPA. The only proven and acceptable treatment for strokes is thrombolytic therapy with tissue plasminogen activator (tPA). tPA dissolves the blood clot and restores blood flow to the brain. The studies of stroke patients show that patients treated with t–PA: can have a dramatically improved outcome. Some patients have a complete recovery. Patients who present at a hospital with an ischemic stroke with symptom onset between four-and-a-half hours or less should be considered receiving t–PA. For whatever reason, doctors and hospitals often make mistakes that lead to delays that
Neonatal strokesNeonatal strokes are disturbances in the blood supply in the infant’s brain. One cause of a fetal stroke is hypoxia, which is the loss of oxygen that deprives the fetus of oxygen which causes injury to the brain and other vital organs. If the obstetrician or midwife failed to see the symptoms of hypoxia and did not take action to head off a stroke, this can be cause for a viable birth injury claim on behalf of the child and her parents.
Stroke Misdiagnosis Verdicts and Settlements
YEAR / STATE
CASE / INJURY SUMMARY
2020 – Texas
A 74-year-old woman’s physician changed her medication from Pradaxa to Warfarin. Three weeks into taking Warfarin, the woman developed a right facial droop and aphasia. She immediately presented to the emergency room, where she was diagnosed with an ischemic stroke. The woman died the following day. Her surviving relatives alleged that the physician negligently changed her prescription by failing to properly test, diagnose, and treat her anticoagulation levels. They argued that proper testing would have determined that Warfarin increased her stroke risk. The jury awarded the family a $684,000 verdict.
$684,000 – Verdict
2019 – Washington
A 17-year-old girl underwent the removal and replacement of an aortic stent. In the middle of the procedure, the surgical team halted it for 40 minutes because they did not have the proper stents and balloons. Her parents alleged that this delay negligently allowed a blood clot to develop. Following the procedure, a nurse noticed signs of right-side hemiparesis. However, the medical staff failed to immediately take measures that would have properly diagnosed and treated her for a stroke. Instead, they consulted an anesthesiologist and a neurology team about three hours later. Her parents alleged that this delayed diagnosis prevented stroke rescue therapies from being effective. As a result, the girl suffered from right-side hemiparesis, cognitive issues, aphasia, and difficulties with performing everyday tasks on her own. The jury awarded her parents a $13,953,887 verdict.
$13,953,887 – Verdict
2019 – Florida
A man presented to the ER with numbness to his left side, headaches, slurred speech. He suspected a stroke. The attending physician ordered a CT scan, which revealed no intracranial issues. He diagnosed the man with heat exhaustion and an anxiety attack, then discharged him home. The following day, the man visited another hospital’s ER, where he was diagnosed with a stroke. He and his wife alleged that the first emergency room delayed his stroke diagnosis by failing to consult a neurologist and failing to appreciate his stroke signs. They also alleged that his delayed diagnosis caused him to suffer permanent paralysis and a severe brain injury. This case settled for $875,000.
$875,000 – Settlement
2019 – New York
A 40-something man claimed that the delayed diagnosis of his stroke caused him to suffer permanent injuries. He alleged that the ER physician failed to recognize transient ischemic attack signs when he presented to the ER with facial drooping and slurred speech. The man also showed dizziness and sinus issues, prompting the ER physician to misdiagnose him with vertigo and sinusitis. He claimed that had the ER physician timely ordered imaging studies, he would have received a vertebral dissection diagnosis and been prescribed blood-thinning medication that would have prevented blood clotting. Instead, the man developed a stroke about a week after visiting the ER. The man became permanently paralyzed and sustained a severe brain injury. He claimed that his injuries left him unable to work as a court officer. The jury ruled in favor of the man and awarded him a $3,866,055 verdict.
$3,866,055 – Verdict
2016 – Oregon
A woman was brought to the ER after she collapsed and lost consciousness at home. The ER physician diagnosed her with emotional problems, prescribed her Ativan, and discharged her home. She subsequently suffered a stroke that led to permanent injuries to her central nervous system and brain. The woman alleged that the ER physician failed to properly diagnose and treat her for a stroke. She claimed that he failed to timely administer tPA, a clot-buster medication, and failed to seek a neurological consultation. The ER physician denied liability, arguing that she appeared to show no signs of a blood clot when she arrived at the ER. A jury awarded the woman $3,720,000, comprising $1,000,000 in medical expenses and $2,720,000 in pain and suffering.
$3,720,000 – Verdict