You have a lawyer at Painter Law Firm

In a plaintiffs' win, a Tyler, Texas case illustrates the tough legal standard for stroke misdiagnosis cases

Ischemic strokes are the most common type

The Tyler Court of Appeals recently entered an opinion in a stroke medical malpractice case. The case is styled Kalka v. Christopher Wattigny, MD and ESS of Nacogdoches, LLC; No. 1221-00048-CV, In the Tyler Court of Appeals. You can read the opinion here.

There are some interesting things about this case that captured my attention.

First, it’s a stroke case.

Stroke law

Stroke cases are notoriously difficult for plaintiffs to prove under current legal standards. In my view, as someone with a medical and scientific background, the current state of the law reflects a judiciary that largely lacks a medical or scientific background. The standards of proof or evidence don’t make any sense from medical, scientific, or mathematical perspectives. But that’s a topic for another day.

Generally speaking, there are two types of strokes. Each presents different legal challenges.

Most strokes are ischemic strokes. This is where a clot dislodges and blocks the blood supply to the brain. The diminished or blocked blood flow causes a lack of oxygen (anoxia or hypoxia) and brain damage. These strokes are typically treated with the clot-busting drug called tPA.

According to the current American Heart Association/American Stroke Association Stroke Early Management Guidelines, physicians should give tPA to:

• All eligible stroke patients within 3 hours of the last known well.

• Certain eligible stroke patients within 4.5 hours of the last known well.

The phrase last known well emphasizes the importance of recognizing when stroke symptoms began. Ischemic stroke patients often experience a sudden onset of one-sided weakness, facial droop, or difficulty speaking (aphasia).

When seeking emergency medical care, physicians and healthcare providers look at these standards of 3 hours or 4.5 hours of the last known well to decide whether give a patient tPA.

In a medical malpractice lawsuit, though, under the current legal standards, it’s next to impossible to pursue a case against a defendant physician or hospital if the patient did not present to the emergency room within approximately 100 minutes of the onset of symptoms.

The second, less common type of stroke is called a hemorrhagic stroke. In these strokes, there is bleeding in the brain. While tPA is the generally-accepted treatment for most ischemic strokes, in many (but not all) types of hemorrhagic strokes, there isn’t an accepted standard of care. That means that defendants can have no liability even when they did nothing to treat the patient.

Expert reports

I often write about the unique Texas tort reform requirement for plaintiffs to produce preliminary medical expert reports early in litigation. Most of the cases that are appealed are from healthcare providers complaining about a trial court’s refusal to dismiss the case based on the defense argument that the plaintiffs’ medical expert reports are inadequate under the law.

These cases are decided under an abuse of discretion standard, meaning that the appellate court will only disturb the probe court ruling if it was an abuse of the trial judge’s discretion to deny the motion to dismiss.

The case that we’re discussing today out of Tyler, though, is more unusual because the parties bringing the appeal are the plaintiffs, arguing that the trial court abused its discretion by dismissing the lawsuit. In short, the plaintiffs in this stroke medical malpractice case argued that the trial court made the wrong ruling because their expert reports were adequate under the law.

In this interesting case, the Tyler Court of Appeals agreed that the trial court abused its discretion and reversed and remanded the case. The appellate court’s analysis will be helpful to plaintiffs in other cases

The stroke case

The plaintiffs filed the medical malpractice lawsuit against Christopher Wattigny, MD, and ESS of Nacogdoches, an emergency medicine practice group.

According to his Texas Medical Board profile, Dr. Wattigny is board certified in family medicine, but not emergency medicine. Nevertheless, he was an employee of ESS and saw the patient in the emergency room (ER) at Nacogdoches Memorial Hospital for a stroke.

The lawsuit petition alleges that the physician didn’t note the patient’s last known well time for considering providing tPA treatment that, if timely administered, would have reduced or eliminated the stroke impairments.

To comply with the expert report requirements of the draconian Texas tort reform law, the plaintiffs timely produced an expert report from a board-certified neurologist who was also an associate professor of neurology and neurosurgery at a well-respected medical school. To be sufficient under Texas law, these preliminary expert reports must detail the applicable standard of care, how it was violated and by whom, and how such violations of the standard of care proximately caused harm.

The defendants objected to the sufficiency of the expert report, focusing on proximate causation. They argued that the expert report was speculative, conclusory, and failed to describe how the patient’s condition and outcome would have been any different had Dr. Wattigny complied with the standard of care.

In cases of ischemic stroke, like this, this is a frequent area of focus for defendants because of the court-created timing requirements discussed above. Ultimately, the trial court agreed with the defendants that the expert report was insufficient on causation and dismissed the case.

The appellate court discussed what the expert report outlined, and the facts are significant. The neurology expert noted that the patient presented to the hospital ER at 11:06 p.m. on a certain date after the sudden onset of symptoms including dysarthria, facial asymmetry, overall slowness/mild drowsiness, and vomiting. The family physician who saw her at the ER noted that the patient had impaired speech and loss of balance, but no focal findings of neurologic deficits.

According to the expert report, the physician and the ER concluded that the patient had other altered mental status and syncope (fainting) and had improved. The patient was admitted to the hospital and seen by physicians who ordered diagnostic imaging that led to the diagnosis of stroke.

The expert report was critical of the physician and the ER for failing to document checking for ataxia, describing the quality of speech, or testing gait, and likely not performing these assessments necessary for stroke workup. He was critical of the doctor for failing to document the last known well time and concluded that the patient likely exhibited the same symptoms that were documented by the physicians who assessed her in the hospital after she was admitted.

Finally, the expert concluded that the standard of care required the emergency physician to administer tPA to this patient within the 4.5-hour window of the onset of symptoms. The expert elaborated that “it will, in reasonable probability, restore blood flow and oxygen delivery to bring tissue sufficient to allow the patient a full or in near full recovery, with minimal lasting effects from the stroke. However, if the patient does not receive such treatment and in a timely matter, brain tissues will die from being starved of oxygen. This substantially raises the likelihood of long-term significant disability.”

The court found that this causation opinion was sufficient because the expert explained to a reasonable degree of medical probability a chain of events beginning with the defendant physician’s alleged negligence there was a foreseeable substantial factor resulting in the patient’s injury. The appellate court also noted that the plaintiffs’ expert was not required to meet the ultimate trial standard at this threshold stage of litigation.

On this basis, the court reversed and remanded the case to the trial court.

ER standard

With the case now back at the trial level, the plaintiffs will ultimately have to produce evidence of willful and wanton negligence, another requirement of Texas tort reform that applies to many hospital emergency room malpractice cases.

The willful and wanton negligence standard requires plaintiffs to show that the physician had actual awareness of factors that placed the patient in an extreme degree of risk. In cases like this, where the physician allegedly performed inadequate examination or assessment, the defense will no doubt use that as a shield to protect against arguments of actual knowledge.

Who’s seeing you in the ER?

A final thought about this interesting case is when you go to an emergency room, who’s actually seeing you? Is it even a physician? You should ask. Sometimes nurse practitioners or physician assistants see patients in ER settings. If it’s a physician, is it someone who did an emergency medicine residency? If you suspect misdiagnosis while being pushed out of the ER, you should ask about the physician’s qualifications.

If you’ve been seriously injured because of poor stroke or ER care in Texas, then contact a top-rated experienced Texas medical malpractice lawyer about your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


// Read full biography
// Read more expertise by Robert Painter

Discover More