CASE ON POINT: 2008-MN-0904, 070 Hawkins v. Fontaine, (09/02/2008) N.W.2d--MN

ISSUE: Should a Dr. who fails to diagnose pulmonary embolism in-spite of classic symptoms-be liable for a patient's death?

CASE FACTS: On May 3, 2004, Bonnie Moore was seen in the Urgent Care Department

of Aspen Medical Group with complaints of trouble breathing, chest tightness, sore throat, runny nose, chills, and fatigue. Her symptoms started 6-8 weeks earlier. The urgent-care-physician noted rhonci/rales in the lower left lobe of Moore's lung and reviewed her chest x-ray. The physician diagnosed Moore with pneumonia and prescribed an antibiotic. Moore was also given a work note, authorizing her to return to work on May 5. She was instructed to return to the clinic if her condition became worse or to follow-up with her primary care physician in 2-3 days if any change occurred. The following day, Moore returned for follow-up care at Aspen and was seen by Dr. Annie Fontaine. Dr. Fontaine noted in Moore's record that Moore had returned "for a work note" and that she presented with essentially the same symptoms and vital signs as she had the day before. Dr. Fontaine performed a physical examination and, although she was unable to obtain the x-ray for review, noted that Moore had a cough consistent with the pneumonia diagnosis. Dr. Fontaine noted in Moore's treatment record that she was "having a lot of chest pain with breathing and coughing." Dr. Fontaine prescribed Vicodin for Moore's cough and issued an extended work note, authorizing her to return to work on May 6. Dr. Fontaine instructed Moore to return if she developed a high fever, her cough worsened or she vomited. The following day, May 5, 2004, Moore was taken to the hospital after suffering from the rapid onset of nausea and vomiting. Moore was pronounced dead shortly after arriving at the hospital. An autopsy revealed that Moore's death was caused by a massive acute pulmonary embolism that occluded the right and left main branches of the pulmonary artery. Moore's daughter, Jodi Hawkins, filed suit against Dr. Fontaine for negligence in failing to diagnose Moore's pulmonary embolism. She submitted two expert-witness affidavits. Dr. Fontaine moved for dismissal, arguing that the affidavits failed to articulate a standard of care, or explain how Dr. Fontaine breached the applicable standard of care. Dr. Fontaine maintained that the plaintiff's expert affidavits tailed to satisfy the chain-of-causation requirement because they did not demonstrate how and why Dr. Fontaine's alleged negligence caused Moore's untimely death The trial court granted Dr. Fontaine's motion to dismiss. The plaintiff appealed.

COURT'S OPINION: The Court of Appeals of Minnesota reversed the judgment of the trial court, which had granted Dr. Fontaine's Motion to Dismiss, and remanded the case back to that court for trial. The court held, inter alia, that Minnesota law requires a plaintiff's expert witnesses' affidavits to provide specific details concerning the experts' expected testimony, including the applicable standard of care, the acts or omissions that plaintiffs allege violated the standard of care and an outline of the chain of causation that allegedly resulted in damage to them.

LEGAL COMMENTARY: The court noted that the plaintiffs' expert medical witnesses, both of whom were board-certified, stated that it was negligent and not reasonable for Dr. Fontaine not to have suspected the possibility of pulmonary embolism and ordered or arranged for objective testing to include an emergent CT scan and/or a D-dimer blood test, either of which would have led to the diagnosis of pulmonary embolism. Further, the court noted that the evidence showed that Moore had several obvious risk factors for a pulmonary embolism in addition to those previously mentioned. These included obesity, relatively recent major orthopedic surgery, positive lupus anticoagulant therapy and questionable recent transient stroke. The court concluded that the trial court had erred in agreeing with Dr. Fontaine's contention that the plaintiff's failure to include the physician who examined Moore when she first presented at Aspen as a defendant, impaired the plaintiff's standing to sue Dr. Fontaine. The court concluded that the affidavits of the plaintiffs' two expert medical witnesses, stated that Dr. Fontaine was negligent in failing to diagnose the patient's pulmonary embolism, particularly in view of the fact that the patient presented with classic symptoms which, at the very least, would have compelled the reasonably prudent physician to role out pulmonary embolism. Had Dr. Fontaine ordered the appropriate diagnostic tests, which were indicated by the patient's symptoms, in all probability she would have been able to accurately diagnose the patient's condition and immediately take appropriate measures to prevent, or at the very least, minimize the damage to her patient. Instead, she let her patient go on her merry way, not knowing that she should have been hospitalized, and all necessary measures undertaken to avoid the dire consequences of failing to timely diagnose the pulmonary embolism, in spite of the plethora of symptoms, which would have caused any reasonably prudent physician to hospitalize the patient and intervene to the maximum extent possible.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, lie concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.