Epidural abscess: the missed diagnosis.

A correct initial diagnosis and immediate treatment are essential to prevent this spinal infection from causing paralysis.

"Somebody screwed up," said Leo Jacobs's University of Maryland Hospital doctor. It was the doctor's way of letting Leo's family know they should look for legal help. The doctor believed Leo's paralysis would have been prevented had the community hospital treated his back infection, a condition known as epidural abscess.

The words fell upon Leo's family like a ton of bricks. Leo was permanently paralyzed from the waist down due to the dew astating effects of his epidural abscess. Left untreated, the abscess grew and compressed his spinal cord. He faced living his life with a profound disability and hundreds of thousands of dollars in future medical and rehabilitation expenses.

Leo at 72 years old was an active deaf man who had enjoyed national prestige in the deaf community as an educator and author of A Deaf Man Speaks Out, a leading work on the plight of the deaf in a hearing world. He had just retired after 40 years as a teacher, professor, and advocate. In retirement, he was looking forward to continuing his writing, traveling around the world, and spending more time with his family. Now, he would spend his life in a wheelchair.

His story is typical of how epidural abscesses can go undiagnosed and lead to tragic results. It began in February 1991, while Leo was visiting friends in California. He began to experience sudden severe back pain and a fever--the classic symptoms of an epidural abscess. Unfortunately, the doctors in California did not realize his back pain and fever were connected.

When the fever subsided, Leo was cleared to return to his home in Maryland. But by the time he got there, his pain had become so severe that he had trouble walking. His primary care physician admitted him to a local community hospital. After some initial confusion as to whether the pain might be due to metastatic cancer in the back, the attending physicians and the infectious disease specialist began to focus on the possibility that the pain was due to a back infection.

At this critical stage, the doctors failed to act quickly and according to the standard of care. Instead, Leo was started on ineffective levels of antibiotics, and his pain worsened despite heavy doses of morphine.

In all, Leo Jacobs spent 11 days in the hospital while his doctors delayed diagnosing this serious condition. Despite the fact that he was admitted with the classic symptoms of an epidural abscess, that an abscess was the leading diagnosis, that his pain grew increasingly severe, and that on the fourth day a bone scan showed an abnormality in his midback, Leo was never started on therapeutic levels of antibiotics. He was not referred to a neurologist or neurosurgeon for evaluation, and no special precautions were taken to monitor changes in his neurological state. These steps should have been taken in order to properly diagnose and treat an abscess.

On the eighth day, the doctors finally ordered an MRI, but two critical errors were made. First, they ordered images of Leo's lower back, instead of his midback, where he had been complaining of pain. Second, they ordered the scan to be done on a routine basis, when they should have indicated it was urgent. The scan was not done for two days.

Eleven days after being admitted to the hospital, Leo was examined and his legs were found to be weak. This finding finally mobilized his attending physicians to get the result of the MRI. They also called in a neurosurgeon and transferred Leo to a university hospital. But by then, it was too late to prevent the serious injury to his spinal cord.

My firm represented Leo in his lawsuit against the attending physicians, the infectious disease specialist, and the radiologist for failure to timely diagnose the abscess.(1) The trial lasted two weeks and resulted in a verdict for Leo. His litigation required us to gain a thorough understanding of the condition and enlist the help of knowledgeable experts to prepare the case.

Symptoms and diagnosis

An epidural abscess is a bacterial infection outside the dura mater and within the spinal canal. This condition accounts for less than one in 10,000 hospital admissions.(2) These cases appear to be on the rise because of the increased use of spinal anesthesia and local injections for pain. Diabetics, intravenous drug users, and patients who have had spinal injections or a recent infection are at a higher-than-average risk for developing an epidural abscess.(3)

Only 25 percent of epidural abscesses are correctly diagnosed upon initial evaluation.(4) An abscess can grow rapidly, causing damage by compressing the spinal cord or restricting circulation in the surrounding blood vessels. If it is left untreated, the condition can progress to the point of irreversible spinal cord damage, paralysis, or death.(5) Thus, early detection and aggressive treatment are mandatory.

The first symptom is usually severe back pain in a small area over the spine. In later stages, the pain radiates along dermatomal lines and into the lower extremities.

Fever and malaise often occur.(6) If left untreated, the abscess can cause neurological effects, including extremity weakness, inability to void, incontinent bowel, permanent paralysis, or death.

An MRI is the current standard of care for diagnosis. Some physicians still rely on bone scans, myelograms, CT scans, and even conventional X-rays. The conventional X-ray is not a diagnostic tool for spinal abscesses because it cannot provide the necessary definition.(7)

Once the condition is diagnosed, antibiotic therapy must be started at once, and in most instances surgery must be performed immediately to drain the abscess and prevent paralysis.(8) Patients who are diagnosed early and treated before neurological damage occurs increase their chances of recovery without significant residual effects.(9)

The standard of care requires physicians to consider epidural abscess in patients with sudden back pain or some symptom of neurological impairment such as weakness or incontinence, especially in patients with predisposing factors like diabetes, recent surgery, recent spinal injection, previous, infection, or intravenous drug use. If the pain is severe, arrives suddenly, and cannot be explained by some other cause--such as a recent injury--the doctor should suspect epidural abscess until it is ruled out by an MRI.

Signs of infection--fever, malaise, headaches, elevated erythrocyte sedimentation rate, abnormal spinal fluid, and positive blood cultures--should alert the physician to promptly order an urgent MRI of the spine to determine the diagnosis. It may be negligent for the doctor to discharge a patient with sudden back pain without examining for signs of infection by ordering aerobic and anaerobic blood cultures and blood tests. This is particularly true if the patient is in one of the high-risk categories.

If the treating or admitting physician suspects an epidural abscess, the standard of care requires a prompt referral to an infectious disease specialist, neurologist, or neurosurgeon for diagnosis and treatment. No other specialist, and certainly not an internist or general practitioner, should be managing the patient once there is reasonable clinical suspicion of an epidural abscess. Any delay in making a referral to a specialist may be the basis for a malpractice claim.

Patients who are suspected of having an epidural abscess should not remain at community hospitals. They need to be immediately transferred to a tertiary hospital that has staff and facilities that are adequate to diagnose and treat complex neurological conditions.

Potential defendants

Aside from the treating physicians who missed the diagnosis, there are a number of potential defendants in these cases. One is the radiologist. One reason the diagnosis is missed is that the initial diagnostic test (the bone scan, CT scan, myelogram, or MRI) is misread by the radiologist or nuclear medicine specialist. With a "normal" scan report, the treating physicians may have ruled out an epidural abscess. If the early tests are reported as "normal," there is a chance that the radiologist misinterpreted the study.

Get the diagnostic films from the hospital's radiology department as soon as possible and have them reviewed by your own radiologist. This may lead to the discovery that the primary defendant should be the radiologist.

Other potential defendants include any emergency room physicians who first treated the patient. Often the first sign of an epidural abscess is sudden and excruciating back pain that causes the patient to seek help in an emergency room. Many times the ER physician fails to take a full medical history and consider the possibility of an epidural abscess and often makes a diagnosis of muscle strain.

Traditionally, radiologists and ER physicians were hospital employees, and traditional principles of respondeat superior applied if the hospital was named as a defendant. If discovery revealed negligence by these doctors, the negligence would be imputed to the hospital, and it would not matter whether they were named as defendants before the statute of limitations expired.

Today, more and more hospitals are employing outside services as independent contractors to staff the emergency, radiology, and other departments. The hospital may not be vicariously liable for the independent contractors' negligence.

Whether the doctors involved in a case are independent contractors or employees will probably not be apparent from the medical records alone. It is best to assume that any negligent provider involved in the patient's care in the hospital setting is an independent contractor, and each should be named as a defendant. If you do not, but you have named the hospital as a defendant, you may still be able to argue in some jurisdictions that a particular independent contractor physician was the "apparent agent" of the hospital, but this is sometimes a difficult standard to meet.(10)

Locating experts

Epidural abscess cases require several types of experts, and some research may be required to find them. An infectious disease specialist and/or a neurologist or a neurosurgeon are needed to testify that early diagnosis and treatment probably would have prevented the paralysis. Depending on the law in a jurisdiction, the expert may be allowed to testify that the failure to timely diagnose caused the patient to lose a significant chance to prevent paralysis.(11)

Locating experts who have actual experience can be difficult. In Leo's case, we obtained an expert on standard of care issues through an expert referral service. Our experience with these services has been mixed. If you have a time crunch, they can be helpful and give you a prompt response. But many services provide inexperienced experts or experts who have testified so often that they look like "hired guns." To prevent getting the wrong expert, check with other attorneys and get their recommendations about the expert referral services they have used.

Also, consider using a service like the ATLA Exchange, which charges a modest fee to provide names of experts from its databank. The Exchange can also provide summaries of reported verdicts and settlements involving epidural abscesses, along with the names and locations of the plaintiff attorneys and experts.(12) Armed with this information, you can find and talk with an expert who has testified in a successful case.

Another option is to call the chair of the neurology department at a local medical school, who may be able to suggest a knowledgeable expert. Authors of medical journal articles may be willing to testify on your client's behalf.

You will also need damages experts. Paralysis is a devastating injury, and the full emotional and financial magnitude of it cannot be communicated to the jury without qualified experts in rehabilitation medicine and life care planning. These experts can describe the plaintiff's various physical limitations and outline the future therapies and expenses that he or she will need to live a productive life.

The life care plan may include such "large ticket" items as attendant care, inpatient rehabilitation center evaluation and treatment, and housing modifications. A skilled life care planner with forensic experience can significantly enhance the potential recovery.

Medical literature

Finding reliable information on this subject may take some time. The general medical textbooks, such as Harrison's Principles of Internal Medicine and Cecil's Textbook of Medicine, contain only the barest details about epidural abscesses. Even Merritt's Textbook of Neurology does not contain a detailed explanation of the condition.

A Medline search at its site on the Internet (www.nlm.nih.gov/databases/freemdl. html) uncovered a wealth of information about epidural abscesses in abstract form. We collected 100 articles.(13) Many of them admonish physicians to consider abscesses during the diagnosis of a patient with back pain and signs of an infection.

The literature outlines the appropriate diagnostic procedures, including the need to immediately order an MRI when there is reasonable clinical suspicion of an epidural abscess. The articles discuss the emergent procedures that should be followed to treat the condition.

If you are going to try the case in federal court or in a jurisdiction that has a liberal rule similar to Federal Rule of Evidence 803(18), your expert can incorporate these articles into his or her opinion if the expert testifies that the articles are "reliable authorities." This testimony also lays the foundation for you to impeach the defense expert with these same articles on cross-examination, even if the defense expert refuses to acknowledge these sources as "authoritative."(14)

Defense tactics

The defense to a misdiagnosis claim usually centers on two related points. First, the defense will argue that the condition is so rare that it was understandable for the treating physician to fail to recognize the abscess since it is not high on the differential diagnosis list. Be prepared to be battered with statistics as to how rare the condition is. Your expert should be prepared to explain that despite its rarity, epidural abscesses are known to have disastrous consequences if left untreated. If a patient has a sudden back pain and no other apparent cause exists, then an epidural abscess must be considered until it is ruled out of the diagnosis.

Second, the defense will say that the typical symptoms--back pain and fever--are nonspecific and are more likely the result of many other causes that should be investigated before launching into expensive diagnostic tests. Back pain, in particular, is a symptom for dozens of other conditions.

Again, the plaintiff must emphasize the devastating consequences of the delayed diagnosis and then point to the fact that the combination of sudden back pain and fever is highly suggestive of an infection of the back.

You may see a "blame the victim" defense, especially if the victim delayed in seeking treatment. Remind jurors that most people probably do not go to the doctor at the first sign of back pain. Expect the defense to explore the possibility that the victim was a drug abuser since the origin of some epidural abscesses is an infected needle. If your client is a drug abuser, you must be very careful to address juror bias during voir dire and remind jurors that all patients, regardless of their social status or history, are entitled to medical care that meets the standard of care.

Expect to see finger-pointing at other physicians, especially any who settled before trial. In Leo's case, the attending physicians blamed the infectious disease specialist, who had settled. He was a good target since as a specialist in infections he was the best person to diagnose the condition and recommend appropriate treatment. You may wish to try to exclude an "empty chair" defense through a pretrial motion. If that fails or is not available, then you can argue that another doctor's errors do not excuse the defendant's errors of judgment.

The defense will also likely argue that even if the abscess had been diagnosed, the plaintiff was not a candidate for successful treatment. If there was rapid progression of the disease from the onset of symptoms to paralysis, the defense will argue that even early antibiotic therapy would not have been effective since it takes hours for the medication to reach therapeutic levels in the body.

To counter this argument, a standard of care expert should establish the earliest time at which antibiotic therapy could have begun. Your infectious disease expert can then establish that had therapeutic levels of antibiotics been given at the right time, most likely the growth of the abscess would have been arrested before the spinal column was affected. The expert can also establish that prompt drainage of the abscess probably would have prevented further progression of the infection.

The defense may also argue that no amount of antibiotic treatment or surgical drainage would have prevented paralysis because the victim was suffering from an inoperable "vascocculsion" epidural abscess. This type of abscess causes damage to the surrounding blood vessels, and even emergent surgical drainage may not prevent paralysis.

This is a complex causation defense, which only in rare cases has merit. As early as possible, your neurology or neurosurgery expert should review the films and ascertain whether the patient had a vascocculsion and whether it was treatable by surgery or otherwise. If you fail to consult an expert on this issue, you will invite the defense to make a medically unsound causation defense to which you may not have a credible response.

The epidural abscess case presents interesting challenges, both in finding knowledgeable experts and in dealing with the "rare disease" and causation defenses. However, if you master the medical literature and retain good experts, these are winnable cases.

Notes

(1.) Jacobs v. Flynn, No. 96-CA-32958 (Md., Howard County Cir. Ct. Oct. 31, 1997); see, e.g., Smith v. United States Dept. of Veterans Affairs, 865 F. Supp. 433 (N.D. Ohio 1994); Sewell v. United States, 629 E Supp. 448 (N.D. La. 1986); Holton v. Memorial Hosp., 679 N.E.2d 1202 (Ill. 1997); Hurst v. Poelstra, No. 94-CA-61, 1995 Ohio App. LEXIS 5812 (Ohio Ct. App. Dec. 22, 1995).

(2.) Robert L. Danner & Barry J. Hartman, Update of Spinal Epidural Abscess: 35 Cases and Review of the Literature, 9 REVS. INFECTIOUS DISEASES 265 (1987).

(3.) Mary Louise Hlavin et al., Spinal Epidural Abscess: A Ten-Year Perspective, 27 NEUROSURGERY 177, 183 (1990); see also Richard K. Simpson Jr. et al., Rapid Onset of Quadriplegia from a Panspinal Epidural Abscess, 16 SPINE 1002 (1991).

(4.) Id. at 1003.

(5.) Bret A. Ferree et al., Spinal Epidural Abscess: A Case Report and Literature Review, 18 ORTHOPAEDIC REV. 75 (1989).

(6.) Id. at 76-78.

(7.) Hlavin et al., supra note 3, at 183: see also Fatejeet S. Sandhu & William P. Dillon, Spinal Epidural Abscess: Evaluation with Contrast-Enhanced MR Imaging, 12 AM. J. NEURORADIOLOGY 1087 (1991); E. Farley Verner & Daniel M. Musher, Spinal Epidural Abscess, 69 MED. CLINICS N. AM. 375, 379 (1985).

(8.) Verner & Musher, supra note 7, at 381.

(9.) Id. at 382; Hlavin et al., supra note 3, at 183.

(10.) See, e.g., Mehlman v. Powell, 378 A.2d 1121, 1123- 24 (Md. 1977).

(11.) Jeanes v. Milner, 428 E2d 598, 604-605 (8th Cir. 1970); Thompson v. Sun City Community Hosp., Inc., 688 P.2d 605, 614-16 (Ariz. 1984), superseded by statute as stated in Harvest v. Craig, No. 1 CA-CV 97-0579, 1999 Ariz. App. LEXIS 79 (Ariz. Ct. App. May 11, 1999); Truan v. Smith, 578 S.W.2d 73 (Tenn. 1979).

(12.) You may access the ATLA Exchange at http:// exchange.atla.org; or call [phone] or [phone], ext. 615.

(13.) See, e.g., A.S. Baker et al., Spinal Epidural Abscess, 293 N. ENG. J. MED. 463 (1975); D.O. Hancock, A Study of 49 Patients with Acute Spinal Extradural Abscess, 10 PARAPLEGIA 285 (1973); R.N. Hakin et al.,Acute Spinal Epidural Abscess, 17 PARAPLEGIA 330 11979); E.S. Nussbaum et al., Spinal Epidural Abscess: A Report of 40 Cases and Review, 38 SURGICAL NEUROLOGY 225 (1992).

(14.) See FED. R. EVID. 803(18) advisory committee note.

Randell C. Ogg is a partner in the Washington, D.C., firm of Sherman, Meehan, Curtin & Ain.