April 7, 2022

In its opinion dated February 11, 2022, the Commonwealth of Kentucky Court of Appeals (“Kentucky Appellate Court”) held that the trial court was wrong in granting summary judgment to the defendant hospital in a Kentucky medical malpractice case where the dispute was whether the proper CT scan was ordered, and why,  on a patient who later died as a result of an undiagnosed condition (aortic dissection).

The Underlying Facts

On June 23, 2017, Lonnie Baker arrived at the Saint Joseph Health System, Inc.’s emergency room (ER) at 6:31 p.m., complaining of chest pain and nausea. He was treated in the ER by Dr. Lynda Newman. At 10:15 p.m., Dr. Newman ordered chest and abdominal computed tomography (CT) scans without contrast “stat” and they were taken soon thereafter by radiologist technician Lindsey Barnes. At around 11:00 p.m., the radiologist, Dr. Raymonda Stevens, interpreted the CT scans and found them largely unremarkable. Baker was found unresponsive at 1:14 a.m. the next day, a code was called on him and after extensive resuscitation efforts, Baker was pronounced dead at 2:42 a.m. A later autopsy concluded that his death was caused by an ascending aortic dissection with Marfan syndrome, a possible contributing underlying condition. The Estate filed suit for negligence in causing his death against Dr. Newman and others, including St. Joseph.

According to Dr. Newman’s deposition, she decided to order the CT scan of Baker’s chest because she suspected he had possible Marfan syndrome based on Baker’s stature of six feet, nine inches, and knew that Marfan syndrome is associated with an elevated risk of dissection of the heart. Dr. Newman explained she ordered the CT scans without contrast because she was worried about the adverse effect the contrast dye would have on Baker’s kidneys as he had an elevated creatinine level in his blood. Dr. Newman explained that she typed the word “dissection” in the electronic form order.

However, all the records associated with Baker’s chart (whether generated by the ER, radiology, or the radiologist), failed to indicate this CT scan was for dissection. Instead, the orders indicated chest pain, or chest pain, nausea, and abdominal pain. When shown the order form in Baker’s record which was apparently prepared by Dr. Newman, Dr. Newman testified that the order was not as she had prepared it, as it indicated the CT was for “cp” chest pain, which is not what she typed.

Dr. Stevens, the radiologist who evaluated Baker’s CT scans, testified she did not recall seeing a request to evaluate Baker for an aortic dissection. Dr. Stevens explained that if she had been asked to look for a dissection she would have noted that in her report instead of chest pain, and she would have called Dr. Newman and discussed with her that a CT with contrast had to be ordered. Dr. Stevens testified that she made no statement indicating that radiology could not assess for dissection, to be transmitted by the PAX machine or otherwise.

The Kentucky Appellate Court stated with regard to St. Joseph’s motion for summary judgment, “the question came down to whether, assuming the facts most favorable to the Estate that Dr. Newman in fact communicated her desire for the radiologist to check for dissection and the hospital was negligent in not seeing that done (either through the radiology technician changing the order, or some kind of computer glitch preventing the order from being properly transmitted), whether causation for Baker’s death could be attributed to this negligence.”

The circuit court had opined that based upon Dr. Newman’s failure to order the correct test once she knew dissection could not be screened for by a CT without contrast, the Estate failed to establish causation and, therefore, there was no breach of the standard of care.

Kentucky Appellate Court Opinion

The Kentucky Appellate Court stated, “While the exact mechanism responsible for preventing adequate communication between the ER doctor and the radiologist is unclear, the experts were clear that if Dr. Newman were to be believed in her testimony that she requested an evaluation for dissection, this information should have made it to Dr. Stevens. As the hospital is liable for the radiologist technician’s actions and its electronic records system, a reasonable inference could be that the failure to have Dr. Newman’s specific request reach Dr. Stevens must be attributable to hospital negligence. However, if the experts disbelieved Dr. Newman on this, which they all seemed to do to different extents, their general statements about not criticizing the hospital naturally follow from that.”

“We agree with the Estate that the Estate’s experts were clear in their opinions that if the information had made it to Dr. Stevens, Dr. Stevens would have been under a duty to call Dr. Newman and explain the correct type of CT which should be given. Dr. Stevens also specifically testified that if she had known Dr. Newman wanted Baker evaluated for dissection, she would have called Dr. Newman and had that discussion with her. Furthermore, Dr. Bacha specifically testified that ninety-nine times out of one hundred, a phone call of this nature would have been successful in getting the doctor to order the correct test.”

“We disagree with the circuit court that to survive summary judgment Dr. Newman’s testimony must all be believed. If the case went to a jury, the jury as the finder of fact would have “the right to believe part of the evidence and disbelieve other parts, even if the evidence came from the same witness[.]” … The same should be true on summary judgment.”

“Dr. Postel’s testimony about the likelihood of a radiologist’s phone call resulting in the ordering doctor changing the order to an appropriate test, along with Dr. Stevens’s testimony that she would have called Dr. Newman about ordering the correct test if informed as to the correct reason why the CT was ordered, certainly provides a basis for a jury to infer that appropriate communication would have resulted in the correct diagnosis and timely, lifesaving surgery. While it may not be likely that a jury would believe Dr. Newman over hospital records as to what she requested for Baker, on summary judgment courts are not to weigh the evidence and decide factual issues. We believe an appropriate causal link can be made that the hospital’s failure to communicate the necessary information was the ultimate cause of Baker’s death, for Dr. Newman’s initial error in ordering the wrong kind of CT scan, would not have caused Baker harm if it could have been promptly corrected via consultation with the radiologist.”

Kuffner v. Saint Joseph Health System, Inc., NO. 2021-CA-0168-MR.

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