CHANCE OF SURVIVAL DIMINISHED
On the afternoon of May 20, the patient, Mr. Ard, began feeling nauseated. He was in pain and had shortness of breath. Although his wife rang the call bell several times, it was not until sometime later that evening that someone responded and gave Ard medication for the nausea. The nausea continued to worsen. Mrs. Ard then noticed that her husband was having difficulty breathing. He was reeling from side to side in bed. Believing that her husband was dying, she continued to call for help. She estimated that she rang the call bell for 1.25 hours before anyone responded. A code was eventually called. Unfortunately, Mr. Ard did not survive the code. There was no documentation in the medical records for May 20, between 5:30 PM and 6:45 PM, that would indicate that any nurse or physician checked on Ard’s condition. This finding collaborated Mrs. Ard’s testimony regarding this time period.
A wrongful death action was brought against the hospital, and the district court granted judgment for Mrs. Ard. The hospital appealed.
Ms. Krebs, an expert in general nursing, stated that it should have been obvious to the nurses from the physicians’ progress notes that the patient was a high risk for aspiration. This problem was never addressed in the nurses’ care plan or in the nurses’ notes.
On May 20, Ard’s assigned nurse was Ms. Florscheim. Krebs stated that Florscheim did not perform a full assessment of the patient’s respiratory and lung status. There was nothing in the record indicating that she completed such an evaluation after he vomited. Krebs also testified that a nurse did not conduct a swallowing assessment at any time. Although Florscheim testified that she checked on the patient around 6:00 PM on May 20, there was no documentation in the medical record. Ms. Farris, an expert witness for the defense, testified on cross-examination that if a patient was in the type of distress described by Mrs. Ard and no nurse checked on him for 1.25 hours, that would fall below the expected standard of care.1
he similarities and differences between the American legal system and the legal structure of health care organizations.
Regarding the American legal system and health care organizational legal structures, there are a multitude of similarities and differences. Both systems implement a degree of liability in the sense of governing bodies designed to facilitate the “agreed upon actions,” laws given a specified situation. As Miller cites (2006), “government is divided into three branches, legislative, executive, and judicial. On the federal level, statutes are enacted by Congress and only become law when approved by the president” (p.4). However, a particular bill can be over-ruled and disallowed by the Supreme Court of the United States. Miller adds (2006), “a method of overriding a Supreme Court decision, while complex and often time consuming, is to amend the Constitution” (p.4). Similarly, health care organizations implement governing boards, a group of individuals designed to regulate, instill, and facilitate specified laws and by-laws regarding the organization in question. Miller explains (2006), “almost all health care is delivered within an organized system. Clinical and regulatory complexity requires an infrastructure that can be provided only by a well-ordered structure. The organization of most health care entities, regardless of their type, includes a governing body and a chief executive officer” (p.29). Another interesting similarity exists between the American legal system and the legal structure of health care organizations. Both systems must comply with the specified laws imposed by the U.S. President, Congress, and the Supreme Court. A prime example would be the enactment of the laws governing workman’s compensation allocation and the unemployment benefits act for all workers.
A subsequent and primary difference between the American legal system and the health care organizational legal structures centers on bylaws. For-profit organizations incorporate bylaws into policies and procedures and any changes are generally related to the workforce via addendums within the organizational personnel employee handbook. Interestingly, regarding the Long-Term care industry, specific laws governing the care of residents become enacted through federal and state mandates, such laws are enforced by federal and state agencies and must be followed by the individual Long-Term care facilities; however, the Long-Term care organizations cannot change such laws, policies, and procedures. Yet, the federal and state agencies can and do change these laws according to statistical incidence such as falls rates, medication errors, and reluctance to comply pertaining to yearly facility inspections. Another poignant and specific difference relates to appointment vs. election. Miller cites (2006), “health care entities ultimate responsibility centers on establishing goals and polices, select the chief executive, and appoint medical staff members” (p.30). Within the American legal system, the chief executive leaders are elected and maintain their position through the process of re-election.
Lastly, the monetary acquisition of funds regarding the for-profit organizations centers on investors, multiple corporations, and stakeholders/ stocks. However, federal organizations are funded through taxation of its citizenry. Interestingly, there are in place a great deal of federal and state regulations regarding the offering, sale, and re-sale of company stock and partnership interests. Wolper (2004) suggests that, “historically, the legal structure of the health care delivery system in the United States consists almost exclusively of personal interactions between patients and physicians. Today, the health care delivery system is almost completely composed of corporate entities, many of which are investor owned” (p.93). Through similarities and differences of the American legal system and the health care organizational legal structures, it is interesting to view the justification of the intermingling and adaptation of principles that appear to be borrowed from the American legal system and incorporated into the health care organizational legal system. Yet, with this said, the federal government provides more than just structure for health care organizations, they implement a great deal of the mandated policies and procedures that must be followed with strict adherence, regardless of the health care organizations self-enacted laws, by-laws, polices, and procedures.
Miller, R. D. (2006). Problems in health care law. Sudbury, MA: Jones and Bartlett Publishers.
Wolper, L.F. (2004). Health Care Administration: planning, implementing, and managing organized delivery systems. Sudbury, MA: Jones and Bartlett Publishers.
Dr. Robert C. Smiles, Ph.D. Assistant Professor, University of Arizona Global Campus
Nursing and the Law
© Monkey Business Images/Shutterstock
It’s Your Gavel…
CHANCE OF SURVIVAL DIMINISHED
On the afternoon of May
0, the patient, Mr. Ard, began feeling nauseated. He was in pain and had shortness of breath. Although his wife rang the call bell several times, it was not until sometime later that evening that someone responded and gave Ard medication for the nausea. The nausea continued to worsen. Mrs. Ard then noticed that her husband was having difficulty breathing. He was reeling from side to side in bed. Believing that her husband was dying, she continued to call for help. She estimated that she rang the call bell for
hours before anyone responded. A code was eventually called. Unfortunately, Mr. Ard did not survive the code. There was no documentation in the medical records for May
, between 5:
0 PM and
5 PM, that would indicate that any nurse or physician checked on Ard’s condition. This finding collaborated Mrs. Ard’s testimony regarding this time period.
A wrongful death action was brought against the hospital, and the district court granted judgment for Mrs. Ard. The hospital appealed.
Ms. Krebs, an expert in general nursing, stated that it should have been obvious to the nurses from the physicians’ progress notes that the patient was a high risk for aspiration. This problem was never addressed in the nurses’ care plan or in the nurses’ notes.
On May 20, Ard’s assigned nurse was Ms. Florscheim. Krebs stated that Florscheim did not perform a full assessment of the patient’s respiratory and lung status. There was nothing in the record indicating that she completed such an evaluation after he vomited. Krebs also testified that a nurse did not conduct a swallowing assessment at any time. Although Florscheim testified that she checked on the patient around 6:00 PM on May 20, there was no documentation in the medical record. Ms. Farris, an expert witness for the defense, testified on cross-examination that if a patient was in the type of distress described by Mrs. Ard and no nurse checked on him for 1.
hours, that would fall below the expected standard of care.
WHAT IS YOUR VERDICT?
To Be a Nurse: Swedish Hospital, Seattle, Washington
Nursing is the honor and privilege of caring for the needs of individuals in their time of need. The responsibility is one of growth to develop the mind, soul, and physical well-being of oneself as well as the one cared for.
In memory of all those patients that have enriched my life and blessed me with their spirit of living—while they are dying.
There are many things I love about being an RN, but as a Recovery Room nurse, my favorite, by far, is being able to tell a groggy but anxious patient, “It was benign.”
Excellence is about who we are, what we believe in, what we do with everyday of our lives. And in some ways we are a sum total of those who have loved us and those who we have given ourselves to.
I have been with a number of people/patients when they die and have stood in awe. Nursing encompasses the sublime and the dreaded. We are regularly expected to do the impossible. I feel honored to be in this profession.
To get well, I knew I had to accept the care and love that were given to me—when I did healing washed over me like water.
Through all of this I was never alone.
In the caring for one another, both are forever changed.
A friend takes your hand and touches your heart.
To all of you whose names were blurred by the pain and the drugs.
Don’t ever underestimate your role in getting patients back on their feet.
—Swedish Hospital, Seattle, Washington, Unknown Authors
The reader, upon completion of this chapter, will be able to:
• Describe how the scope of nursing practice continues to evolve.
• Describe common categories of nursing staff.
• Explain the process of obtaining nurse licensure.
• Describe a variety of the legal risks nurses encounter.
• Describe the ways in which a nurse is a patient advocate.
This chapter provides an overview of nursing practice, nurse licensure, and various nursing specialties, as well as a review of cases focused on the legal risks of nurses. The cases presented highlight those areas in which nurses tend to be most vulnerable to lawsuits.
.1 SCOPE OF PRACTICE
The role of the nurse continues to evolve and expand due to a shortage of primary care physicians in rural and inner-city areas, ever-increasing specialization, improved technology, public demand, and expectations within the profession itself. A nurse who exceeds his or her scope of practice as defined by applicable statutes (e.g., nurse practice acts) can be found to have violated licensure provisions and thus be subject to disciplinary action.
The following table describes several of the key historical events that have led to the continuing expansion of the roles and duties of nurses in patient care settings.
The expanding scope of nursing practice is accompanied by increased ethical and legal risks.
Nurses are at risk for inappropriate professional relationships due to the broadening scope of nursing practice amidst rapid societal changes and pressures. The complexities of professional nursing relationships have outpaced awareness of ethical considerations of boundary issues. In addition, because professional nursing is founded on a caring ethic and nurses become intimately involved in life experiences of clients and families, nurses may be at risk for confusion over boundaries and inappropriate relationships. Boundaries, which historically were unclear, are increasingly recognized as an issue for the profession.
NOTEWORTHY EVENTS IN THE EXPANDING SCOPE OF NURSING PRACTICE
01—New York began to organize for passage of nurse practice legislation.
03—North Carolina enacted the first nurse registration act.
1905—The development of the hospital economics course at Teachers College, Columbia University, ushered in a new era in preparation of nurse leaders in America. This 1-year certificate course was extended to a 2-year post–basic training program in 1905. The commitment of key nursing leaders to advancing educational preparation for nurse faculty fostered the subsequent development of baccalaureate education in nursing during the first quarter of the 20th century.
—The American Nurses Association (ANA) began recommending that nurses use their professional organization to improve every phase of their working lives.
—New York enacted the first exclusive practice act. This act required mandatory licensure of everyone who performed nursing functions as a matter of employment.
—The ANA convention adopted an economic security program and called for collective action on such items as a
-hour workweek and higher minimum wages.
—All states, including the District of Columbia and U.S. territories, had enacted nurse practice acts.
—The ANA approved a model definition for nursing practice.
—The California Nurses Association met with representatives of medical and hospital associations to draw up a statement supporting nurses in performing venous punctures.
1966—The Michigan Heart Association favored the use of defibrillators by coronary care nurses.
1968—The Hawaii nursing, medical, and hospital associations approved nurses performing cardiopulmonary resuscitation.
1970—The ANA amended its model definition for nursing practice to include nursing diagnosis.
1971—Idaho revised its nurse practice act by allowing diagnosis and treatment as part of the scope of practice for nurse practitioners (NPs).
1972—New York expanded its nurse practice act and adopted a broad definition of nursing.
1973—The first ANA guidelines for NPs were written for geriatric NPs. These were later modified and adapted to apply to other practitioners.
1975—Missouri revised statutes (1975) authorized a nurse to make an assessment of persons who are ill and to render a nursing diagnosis. The 1975 act not only described a much broader spectrum of nursing functions, but it also qualified this description with the phrase, “including, but not limited to.”
1980—The ANA published a model nurse practice act for state legislators to provide for consistency in individual state nurse practice acts.
1985—New York revised its definition of nursing by providing that a registered professional nurse who has the appropriate training and experience may provide primary healthcare services as defined under the statutory authority of the public health law and as approved by the hospital’s governing authority. The term
primary healthcare services means taking histories and performing physical examinations, selecting clinical laboratory tests and diagnostic radiology procedures, and choosing regimens of treatment. These provisions do not alter a physician’s responsibility for patient care.
1989—New York allowed NPs to diagnose, treat, and write prescriptions within their area of specialty with minimum physician supervision.
1990—The ANA again amended its model definition for nursing practice to include the advanced NP as well as the registered nurse (RN).
—Doctor of Nursing Programs continue to expand.
A nurse who exceeds his or her scope of practice as defined by state nurse practice acts can be found to have violated licensure provisions or to have performed tasks that are reserved by statute for another healthcare professional. Because of increasingly complex nursing and medical procedures, it is sometimes difficult to distinguish the tasks that are clearly reserved for the physician from those that may be performed by the professional nurse. Nurses, however, generally have not encountered lawsuits for exceeding their scope of practice unless negligent conduct is an issue.
Various states recognize that nurses can render a nursing diagnosis. This was the case in
Cignetti v. Camel,
3 where the defendant physicians ignored a nurse’s assessment of a patient’s diagnosis, which contributed to a delay in treatment and injury to the patient. The nurse testified that she told the physician that the patient’s signs and symptoms were not those associated with indigestion. The defendant physician objected to this testimony, indicating that such a statement constituted a medical diagnosis by a nurse. The trial court permitted the testimony to be entered into evidence. Section
5.01(8) of the Missouri Revised Statutes (1975) authorizes an RN to make an assessment of persons who are ill and to render a nursing diagnosis. On appeal, the Missouri Court of Appeals affirmed the lower court’s ruling, holding that evidence of negligence presented by a hospital employee, for which an obstetrician was not responsible, was admissible to show the events that occurred during the patient’s hospital stay.
11.2 NURSE LICENSURE
Each state has its own nurse practice act that defines the practice of nursing. Although most states have similar definitions of nursing, differences generally revolve around the scope of practice permitted. The scope of practice of a licensed practical nurse (LPN) is generally limited to routine patient care under the direction of an RN or a physician.
An RN is one who has passed a state registration examination and has been licensed to practice nursing. The scope of practice of a registered professional nurse includes, for example, patient assessment, patient teaching, health counseling, executing medical regimens, and operating medical equipment as prescribed by a physician, dentist, or other licensed healthcare provider.
The common organizational pattern of nurse licensing authority in each state is to establish a separate board, organized and operated within the guidelines of specific legislation, to license all professional and practical nurses. Each board is in turn responsible for the determination of eligibility for initial licensing and relicensing; for the enforcement of licensing statutes, including suspension, revocation, and restoration of licenses; and for the approval and supervision of training institutions. A licensing board has the authority to suspend a license; however, it must do so within existing rules and regulations.
Requirements for Licensure
Formal professional training is necessary for nurse licensure in all states. The course requirements vary, but all courses must be completed at board-approved schools or institutions. Each state requires that an applicant pass a written examination, which is generally administered twice annually. A licensing board may draft examinations, or a professional examination service or national examining board may prepare them. Some states waive their written examination for applicants who present a certificate from a national nursing examination board. Graduate nurses are generally able to practice nursing under supervision while waiting for the results of their examination. The four basic methods by which boards license out-of-state nurses are (1) reciprocity, (2) endorsement, (3) waiver, and (4) examination.
This is a formal or informal agreement between states whereby a nurse licensing board in one state recognizes licensees of another state if the board of that state extends reciprocal recognition to licensees from the first state. To have reciprocity, the initial licensing requirements of the two states must be essentially equivalent.
Although some nurse licensing boards use the term endorsement interchangeably with reciprocity, the two words have different meanings. In licensing by endorsement, boards determine whether out-of-state nurses’ qualifications are equivalent to their own state requirements at the time of initial licensure. Many states make it a condition for endorsement that the qualifying examination taken in another state be comparable to their own. As with reciprocity, endorsement becomes much easier when uniform qualification standards are applied by the different states.
Some states license nurses by waiver and examination. When applicants do not meet all the requirements for licensure but have equivalent qualifications, the specific prerequisites of education, experience, or examination may be waived.
Some states will not recognize out-of-state licensed nurses and make it mandatory that all applicants pass a licensing examination. Most states grant temporary licenses for nurses, which may be issued pending a decision by a licensing board on permanent licensure or may be issued to out-of-state nurses who intend to be in a jurisdiction for a limited, specified time.
Graduates of schools in other countries are required to meet the same qualifications as nurses trained in the United States. Many state boards have established special training, citizenship, and experience requirements for students educated abroad; others insist on additional training in the United States. Nurses who complete their studies in a foreign country are required to pass an English proficiency examination and/or a licensing examination administered in English. A few states have reciprocity or endorsement agreements with some foreign countries.
Suspension and Revocation of License
Nurse licensing boards have the authority to suspend or revoke the license of a nurse who is found to have violated specified norms of conduct. Such violations may include procurement of a license by fraud; unprofessional, dishonorable, immoral, or illegal conduct; performance of specific actions prohibited by statute; and malpractice.
Suspension and revocation procedures are most commonly contained in the licensing act; in some jurisdictions, however, the procedure is left to the discretion of the board or is contained in the general administrative procedure acts. For the most part, suspension and revocation proceedings are administrative, rather than judicial, and do not carry criminal sanctions.
Practicing Without a License
Healthcare organizations are required to verify that each nurse’s license is current. The mere fact that an unlicensed practitioner is hired would not generally in and of itself impose additional liability unless a patient suffered harm as a result of the unlicensed nurse’s negligence. However, a person posing as a nurse could face criminal charges.
11.3 NURSING CAREERS
The next several pages describe a variety of nursing careers and case law examples of the risks some have encountered. Specific attention is given to registered nurses, traveling nurses, nurse managers, licensed practical nurses, certified nursing assistants, float nurses, agency nurses, special duty nurses, student nurses, and advanced practice nurses.
A registered nurse (RN) is a nurse who has graduated from an accredited nursing program and has passed a national licensing exam, known as the NCLEX (National Council Licensure Examination)-RN. NCLEX examinations are developed and owned by the National Council of State Boards of Nursing, Inc. (NCSBN), which administers these examinations on behalf of its member boards. NCSBN is a not-for-profit organization whose membership comprises the boards of nursing in the
states, including the District of Columbia, and four U.S. territories. There are also nine associate members.
Nurses wishing to practice in a particular state should be sure to contact the state’s nurse licensure body for information for specific registration and nurse licensing requirements.
A traveling nurse is one who travels to work in temporary nursing positions in different cities and states. There are a variety of traveling professionals, such as physical therapists and physicians. The traveling professional often has opportunities that include higher wages, professional growth and development opportunities, and the adventure of traveling. Their skills are often enhanced due to their exposure to intriguing assignments in prominent medical centers. Travelers may work as independent contractors or elect to work with one or more recruitment agencies, which act as intermediaries between the nurse and healthcare provider.
Licensed Practical Nurse
A licensed practical nurse (LPN), as well as a licensed vocational nurse (LVN), provides routine nursing care (e.g., vital signs, injections, assisting patients with personal hygiene needs, and wound dressings) under the direction of a registered nurse or physician. To be licensed, they must graduate from a state-approved program and pass a licensing exam approved by the state. Nurses wishing to practice in a particular state should be sure to contact the state’s nurse licensure body for information for specific registration and nurse licensing requirements.
chief nursing officer (CNO) is a qualified RN who has administrative authority, responsibility, and accountability for the function, activities, and training of the nursing staff. CNOs are generally responsible for maintaining standards of practice, maintaining current policy and procedure manuals, making recommendations for staffing levels based on need, coordinating and integrating nursing services with other patient care services, selecting nursing staff, and developing orientation and training programs.
A manager who knowingly fails to supervise an employee’s performance or assigns a task to an individual whom he or she knows, or should know, is not competent to perform the task can be held personally liable if injury occurs. The employer will be liable under the doctrine of respondeat superior as the employer of both the manager and the individual who performed the task in a negligent manner. The manager is not relieved of personal liability even though the employer is liable under respondeat superior.
In determining whether a nurse with supervisory responsibilities has been negligent, the nurse is measured against the standard of care of a competent and prudent nurse in the performance of supervisory duties. Those duties include the setting of policies and procedures for the prevention of accidents in the care of patients.
Failure to Supervise
Nursing managers must properly supervise the care rendered to patients by their subordinates. Failure to do so can lead to disciplinary action by a state regulatory agency. This was the case in
Hicks v. New York State Department of Health,
4 in which the court held that evidence was sufficient to support a finding that a practical nurse was guilty of resident neglect for failing to ensure that the resident was properly cared for during her assigned shift. The record demonstrated that the petitioner was responsible for ensuring that the nursing aides’ tasks were properly accomplished by conducting a visual check of each resident while making rounds at the end of her shift. The nurse’s record indicated that a security guard found a resident lying in the dark, half in his bed and half still restrained in an overturned wheelchair. The nurse’s record indicated that the resident was covered in urine and stool. The commissioner of health denied the petitioner’s request to expunge the patient neglect report and assessed a penalty of $200, of which the petitioner was required to pay $50.
Certified Nursing Assistant
A certified nursing assistant (CNA) provides patient care, generally that involves activities of daily living. CNAs work under the supervision of an RN or LPN. The nursing assistant aids with positioning, turning, and lifting, and performs a variety of tests and treatments. The nursing assistant establishes and maintains interpersonal relationships with patients and other hospital personnel while ensuring confidentiality of patient information. Those who wish to become a CNA in a particular state should be sure to contact the state’s nurse licensure body or a local healthcare facility for guidance and information for educational programs and certification requirements. The failure of certified nursing assistants and nursing aides to follow applicable nursing procedures and protocols can result in patient injuries as noted in the following cases.
Failure to Follow Policy
Failure to follow hospital policy can result in a successful lawsuit for the plaintiff, as was the case where Ovitz, a 73-year-old resident of a convalescent center, died after immersion in a tub of hot water that had been prepared by a nursing assistant.
5 Ovitz had paralysis of his left side and could articulate only the words “yes” and “no.” The nursing assistant checked the water with his hand and bathed the resident. Later in the day, a nurse noticed that the resident’s leg was bleeding and his skin was sloughing off. The paramedics were contacted, and they transferred the resident to a hospital after determining that the patient had suffered third-degree burns. Dr. Drueck, the surgeon at the hospital, observed that Ovitz had suffered third-degree burns over 40% of his body, primarily on his back, buttocks, both sides, genitals, and lower legs.
Ovitz developed pneumonia during his hospitalization and died. There was testimony from Drueck that the cause of death was a result of complications following the burns. The center’s bathing policy to prevent accidents was to avoid making the water too hot. The center’s daily temperature logs indicated that it knew that the water temperature in the system at times fluctuated above its bathing policy, sometimes exceeding 1
°F, yet the center failed to take adequate measures to protect residents from exposure to excessive water temperatures. The center’s own written policy was violated when the nursing assistant left the resident unattended in his bath. The appellate court held that revocation of the center’s license was warranted in this case.
Bowe v. Charleston Area Medical Center,
6 a nurse’s aide brought an action against a medical center for retaliatory discharge and breach of contract. The nurse’s aide assisted a patient to the bathroom and placed him on the commode. She left him unattended for about 10 minutes. When she returned, the patient was found lying on the floor in a pool of blood. The patient apparently hit his head on the sink when he fell. Following an investigation of the incident, the hospital found that the aide had been grossly negligent and thus terminated her employment. The human resources director had authorized the employee’s termination because of a provision in the employee handbook that makes gross negligence a dischargeable offense. The aide claimed that she had been terminated because of her complaints about the lack of patient care on the oncology unit to which she had been assigned. There was no specific evidence that could substantiate that she filed a grievance regarding patient care.
The West Virginia Supreme Court of Appeals held that (1) the evidence established that patient neglect by the plaintiff prompted an investigation that led to her subsequent discharge, and (2) the disclaimer in the employee handbook adequately shielded the employer from any contractual liability based on the employee handbook. The evidence showed that the aide, contrary to the medical center’s policy, had assisted a patient in getting on a commode and then left him unattended, resulting in a fall and his subsequent death. Leaving the patient unattended for 10 minutes on the commode was clearly against hospital policy. The nurse’s aide failed to establish that her discharge was a retaliatory act or that it contravened some public policy.
The hospital’s disclaimer specifically stated that the employee handbook was not intended to create any contractual rights. Employment was subject to termination at any time by either the employee or employer. The disclaimer in the employee handbook read:
Because of court decisions in some states, it has become necessary for us to make it clear that this handbook is not part of a contract, and no employee of the Medical Center has any contractual right to the matters set forth in this handbook. In addition, your employment is subject to termination at any time by either you or by the Medical Center.
The nursing assistant in
Kern v. Gulf Coast Nursing Home of Moss Point, Inc.
8 was attempting to give a resident a whirlpool bath. The resident had been placed in a special rolling seat and was being lifted by a hydraulic lifting device that was used to place residents in the whirlpool. In the process of lifting the resident, the seat, which had been connected to the lift, disconnected. The resident fell to the floor, hitting her head and breaking her hip. The trial court entered a verdict in the amount of $20,000 for the plaintiff and the plaintiff appealed, stating that the award was inadequate. The Mississippi Supreme Court held that the verdict was not so low as to shock the conscience of the court.
Leaving Patient Unattended
The record in
Jones v. Axelrod
9 indicated that a nurse’s aide, while transferring a nursing home patient to her bed from a wheelchair, left the patient sitting on the edge of the bed. The patient subsequently fell to the floor. The aide acknowledged that the patient required restraints. The supervisor testified that the act of leaving the patient unrestrained and unattended on the edge of the bed was improper and inconsistent with safe procedure. Sufficient evidence supported a determination by the commissioner of health that the conduct of the nurse’s aide constituted patient neglect.
float nurse is healthcare professional who rotates from unit to unit based on staffing needs. “Floaters” can benefit an understaffed unit, but they also may present a liability if they are assigned to work in an area outside their expertise. If a patient is injured because of a floater’s negligence, the standard of care required of the floater will be that required of a nurse on the assigned patient care unit.
Healthcare organizations are at risk for the negligent conduct of agency staff. Because of this risk, it is important to be sure that agency workers have the necessary skills and competencies to carry out the duties and responsibilities assigned by the organization.
Special Duty Nurse
special duty nurse is a healthcare professional employed by a patient or patient’s family to perform nursing care for the patient. An organization is generally not liable for the negligence of a special duty nurse unless a master–servant relationship can be determined to exist between the organization and the special duty nurse. If a master–servant relationship exists between the organization and the special duty nurse, the doctrine of respondeat superior may be applied to impose liability on the organization for the nurse’s negligent acts.
A special duty nurse may be required to observe certain rules and regulations as a precondition to working in the organization. The observance of organization rules is insufficient, however, to establish a master–servant relationship between the organization and the nurse. Under ordinary circumstances, the patient employs the special duty nurse, and the organization has no authority to hire or fire the nurse. The organization does, however, have the responsibility to protect the patient from incompetent or unqualified special duty nurses.
Student nurses are entrusted with the responsibility of providing nursing care to patients. They are personally liable for their own negligent acts, and the facility is liable for their acts on the basis of respondeat superior. A student nurse is held to the standard of a competent professional nurse when performing nursing duties. The courts, in several decisions, have taken the position that anyone who performs duties customarily performed by professional nurses is held to the standards of professional nurses. Every patient has the right to expect competent nursing services, even if students provide the care as part of their clinical training. It would be unfair to deprive a patient of compensation for an injury simply because the nurse was a student.
11.4 ADVANCED PRACTICE NURSES
The practice of nursing continues to expand with an ever-increasing number of specialties, along with professional organizations and certifying boards. Discussed here are a variety of legal risks of advanced practice nurses, including nurse practitioners, clinical nurse specialists, certified nurse anesthetists, and certified nurse midwifes, who possess an advanced degree that allows them to treat patients in areas beyond those provided to registered nurses.
Nurse practitioners (NPs) are RNs who have completed the necessary education to engage in primary healthcare decision making. The NP is trained in the delivery of primary health care and the assessment of psychosocial and physical health problems such as the performance of routine examinations and the ordering of routine diagnostic tests. A physician may not delegate a task to an NP when regulations specify that the physician must perform it personally or when the delegation is prohibited under state law or by an organization’s own policies.
The Role of Nurses Extends Beyond the Hospital Ward
A nurse is a doctor’s best friend, according to Marvin M. Lipman, Consumers Union’s chief medical adviser. This advice was given to him by a hospital ward’s head nurse when he was a third-year medical student making contact with patients for the first time, along with the suggestion that he’d do well not to forget it.
Over the years, those words continued to echo in Lipman’s mind … he has seen nurses go that extra step to make a patient comfortable or more at ease.
—Consumers Union of United States Inc.,
The Washington Post, May
The Role of Nurses Extends Beyond the Hospital Ward
Studies have found that [nurse practitioners’] ability to diagnose illnesses, order and interpret tests, and treat patients is equivalent to that of primary-care physicians. They also tend to spend more time with patients during routine office visits than physicians, and they are more likely to discuss preventative health measures. As of 2010, 140,000 NPs were working in the United States.
Nurse practitioners are poised to become even more visible with the passage last year of the Patient Protection and Affordable Care Act, which could add nearly
million people to the ranks of the insured.
—Consumers Union of United States Inc.,
The Washington Post, May 30, 2011
The potential risks of liability for the NP are as real as the risks for any other nurse. The standard of care required most likely will be set by statute. If not, the courts will determine the standard based on the reasonable person doctrine (i.e., what would a reasonably prudent NP do under the similar circumstances?). The standard would be established through the use of expert testimony of other NPs in the field. Because of potential liability problems and pressure from physicians, hospitals have been historically reluctant to use NPs to the full extent of their training. Such reluctance has been diminishing as the competency of NPs has been well demonstrated in practice.
As described in the following case, the negligence of an NP can be imputed to a physician if the physician is the employer of the nurse.
Clinical Nurse Specialist
clinical nurse specialist (CNS) is a professional RN with an advanced academic degree, experience, and expertise in a clinical specialty (e.g., obstetrics, pediatrics, psychiatry). Further, the CNS acts as a resource for the management of patients with complex needs and conditions. The CNS participates in staff development activities related to his or her clinical specialty and makes recommendations to establish standards of care for those patients. The CNS functions as a change agent by influencing attitudes, modifying behavior, and introducing new approaches to nursing practice. The CNS collaborates with other members of the healthcare team in developing and implementing the therapeutic plan of care for patients.
NEGLIGENCE IMPUTED TO PHYSICIAN
Adams v. Krueger, 8
P.2d 864 (Idaho 1993)
The plaintiff went to her physician’s office for diagnosis and treatment. An NP who was employed by the physician performed her assessment and diagnosed the plaintiff as having genital herpes. The physician prescribed an ointment to help relieve the patient’s symptoms. The plaintiff eventually consulted with another physician who advised her that she had a yeast infection, not genital herpes.
The plaintiff and her husband filed an action against the initial treating physician and his NP for their failure to correctly diagnose and treat her condition. The action against the physician was based on his failure to review the NP’s diagnosis and treatment plan. The trial court found in favor of the plaintiff and the defendants appealed. The court of appeals affirmed, and further appeal was made.
Did the trial court err by imputing the nurse’s negligence to the physician?
The Idaho Supreme Court held that the negligence of the nurse was properly imputed to the physician.
The Idaho Supreme Court held that the physician and NP stood in a master–servant relationship and that the nurse acted within the scope of her employment. Consequently, her negligence was properly attributed to her employer/physician.
1. Do you agree with the court’s decision? Explain.
2. What might the employer/physician do to limit his liability in the future for the negligent acts of his professional employees?
3. If the NP has malpractice insurance, can the physician recover any of his losses from her insurance carrier?
Certified Nurse Anesthetist
Administration of anesthesia by a nurse anesthetist requires special training and certification. Nurse-administered anesthesia was the first expanded role for nurses requiring certification. Oversight and availability of an anesthesiologist are required by most organizations. The major risks for nurse anesthetists include improper placement of an airway, failure to recognize significant changes in a patient’s condition, and the improper use of anesthetics (e.g., wrong anesthetic, wrong dose, wrong route). Medical supervision of nurse anesthetists is generally required in hospital settings. Failure to properly supervise a nurse anesthetist can lead to a lawsuit if a patient is injured because of a negligent act.
Certified Nurse Midwife
certified nurse midwife provides comprehensive prenatal care, including delivery, for patients who are at low risk for complications. For the most part, a nurse midwife manages normal prenatal, intrapartum, and postpartum care. Provided that there are no complications, normal newborns are also cared for by a nurse midwife. Nurse midwives often provide primary care for women’s issues from puberty to post-menopause.
Practicing Without a License
The plaintiff in
Morris v. Dep’t of Prof’l Regulation
10 held herself out as a lay midwife in Illinois from 1983 through August 2001. The plaintiff performed prenatal exams on her patients, helped them deliver their babies at home, and provided postpartum and newborn care. The plaintiff was never licensed to perform midwifery care and, therefore, failed to comply with the state nursing act’s licensing requirements. The purpose of the nursing act is to promote public health, safety, and welfare by ensuring that those individuals who engage in the conduct described in the act are properly trained and licensed. The Department of Professional Regulation ordered the plaintiff to cease and desist the practice of midwifery. The plaintiff’s nursing license was suspended, followed by probation and a fine of $2,500. In addition the nurse was required to complete a
-hour ethics course.
NURSE ANESTHETIST: MEDICAL SUPERVISION REQUIRED
Denton Reg’l Med. Ctr. v. LaCroix, 9
(Tex. Ct. App. 1997)
Mrs. LaCroix was admitted to the hospital’s women’s pavilion for the birth of her first child, Lawryn. She was admitted to the hospital under the care of Dr. Dulemba, her obstetrician. Prior to undergoing a cesarean section, LaCroix complained several times of breathing difficulty. When Dr. McGehee, the pediatrician, arrived, he noticed that LaCroix appeared to be in respiratory distress and heard her say, “I can’t breathe.” McGehee asked Nurse Blankenship, a certified registered nurse anesthetist (CRNA), if LaCroix was okay. She responded that LaCroix was just nervous. Mr. LaCroix claimed his wife whispered to him that she could not breathe. Mr. LaCroix then shouted, “She can’t breathe. Somebody please help my wife.” Blankenship asked that Mr. LaCroix be removed from the operating room because his wife was having what appeared to her to be a seizure.
Blankenship could not establish an airway. She told one of the nurses: “Get one of the anesthesiologists here now!” Dr. Green, who was in his car, was paged. Upon receiving the page, he immediately drove to the women’s pavilion, where Dulemba had already started the cesarean section. When Lawryn was delivered, she was not breathing, and McGehee had to resuscitate her. Meanwhile, Blankenship worked to establish an airway for LaCroix. The intubation was, however, an esophageal intubation. Dulemba stated that he thought that the intubation was esophageal. LaCroix’s blood pressure and pulse dropped, and she went into cardiac arrest. A physician and nurse from the hospital’s emergency department responded to a code for assistance. McGehee testified that the emergency department physician said that he did not know how to resuscitate pregnant women and left without providing any medical care. Dulemba and a nurse began cardiopulmonary resuscitation on LaCroix. McGehee, having finished treating Lawryn, took control of the code. LaCroix suffered irreversible brain damage.
Blankenship and Dr. Hafiz, the Denton Anesthesiology Associates (DAA), PA, anesthesiologist on call for the women’s pavilion on the day of LaCroix’s incident, settled with the LaCroixes by paying $500,000 and $750,000, respectively. The trial court entered a judgment against the hospital, awarding the LaCroixes approximately $8.8 million in damages.
Was the evidence sufficient to hold the hospital liable for medical negligence under a theory of corporate liability?
The evidence was sufficient to hold the hospital liable for medical negligence under a theory of corporate liability.
The evidence established that the hospital owed a duty to the plaintiff to have an anesthesiologist provide or supervise all anesthesia care, including having an anesthesiologist personally present or immediately available in the operating suite. The hospital’s breach of this duty proximately caused the patient’s brain damage.
The hospital’s anesthesia department policies and procedures required that an anesthesiologist perform the preanesthesia evaluation, that an anesthesiologist discuss with the patient the anesthesia plan, and that an anesthesiologist supervise a CRNA by being “physically present or immediately available in the operating suite.”
According to Dr. Via, chairman of the hospital’s anesthesiology department in 1991, he complained to Mr. Ciulla, who was in charge of the DAA contract, about the lack of proper CRNA supervision in the women’s pavilion. According to Ciulla, he renewed the contract in conjunction with the hospital’s medical staff. According to Via, the hospital’s medical executive committee recommended to Ciulla that he not renew DAA’s contract and that he seek another anesthesia group for the women’s pavilion. The hospital’s board of directors renewed the contract anyway.
1. Describe why this outcome occurred and how similar events can be prevented in the future.
2. Describe the roles of the nurse anesthetist and anesthesiologist in this case.
On appeal, the appellate court affirmed the orders requiring the nurse to cease and desist the practice of midwifery and suspending her nursing license and fining her. The defendant however failed to provide an argument or citation to any authority explaining the relevance of the 12-hour ethics course as to the purposes of the Nursing Act. And thus vacated the defendant’s requirement that plaintiff complete an ethics course.
Standard of Care Required
The plaintiff-appellant in
Ali v. Community Health Care Plan, Inc.
12 claimed that the trial court improperly charged the jury on the standard of care to be applied in the case. Specifically, the plaintiff contended that the effect of the trial court’s charge was to establish a lower standard of care by which the jury would determine whether negligence existed in the case. The plaintiff asserted that the standard of care to be applied should have been that of a reasonably prudent professional engaged in the practice of obstetrics and gynecology, and not that of a reasonably prudent
nurse midwife engaged in the practice of obstetrics and gynecology. The defendant responded that the trial court’s charge did not establish a lower standard of care and that the jury instruction was correct because it was in accordance with the actual evidence presented in the case. The Supreme Court of Connecticut, agreeing with the defendant, concluded that the trial court charged the jury with the correct standard of care. The question properly presented to the jury was whether the defendant’s conduct met the standard of care applicable to her as a nurse midwife.
11.5 LEGAL RISKS OF NURSES
The number of adverse actions reported for nurses to the
National Practitioner Data Bank (NPDB) was 12,
8 in 2003, which nearly doubled to
in 2012. The number of adverse actions by nurses reported to the NPDB between 2009 and 2011 increased 25 percent, from
7, reflecting the implementation of Section 19
of the Social Security Act, which expands the information gathered by the NPDB to include adverse licensure actions taken against all licensed healthcare practitioners. The information gathered includes any negative actions by state licensing agencies, peer review organizations, and private accreditation organizations.
This section provides an overview of some of the more common legal risks of nursing. As with many negligence cases, the reader should identify the ethical issues of the case that, if addressed, may help reduce the frequency of negligence suits.
Dilemma of Two Standards of Care
Given two standards of care, should a hospital adopt the least restrictive standard? This generally would not be a good idea. For example, in
Edwards v. Brandywine Hosp.,
14 Mr. Edwards went to the emergency department complaining of pain in his hip. He was admitted, and a heparin lock (a device that allows multiple IV fluids to be introduced at a common point) was placed in his left hand. The heparin lock was left in place for 3 or 4 days. This was in violation of regulations promulgated by the Pennsylvania Department of Health requiring hospitals to develop written standards regarding such antiseptic practices as changing IV catheter sites. The regulations state that these standards should comply with standards described in the American Hospital Association’s publication,
Infection Control in the Hospital (1979), which recommends that IV catheter sites be changed every
hours in order to reduce the risk of infection. The hospital was subject to corporate liability for adopting a 72-hour rule.
Following discharge, Edwards noticed a red spot at the site of the heparin lock. He returned that day to the hospital for physical therapy. His therapist referred him to the emergency department for evaluation. The emergency department physician examined Edward’s hand and took a specimen of pus from the site of the heparin lock and sent it to the laboratory for evaluation. Edwards was provided with oral antibiotics and sent home. The laboratory results showed that Edwards had a
Staphylococcus (staph) infection. The emergency department physician entered this information on the patient’s record.
Edwards returned to the hospital a few days later and was admitted with leg pains. A second laboratory test was ordered, which again showed the presence of a staph infection. The patient was treated over a period with IV antibiotics and eventually discharged with a good bill of health, only to return a week later with pain and a fever. Following treatment and various hospitalizations over the next several years, Edwards’s physicians decided to remove his artificial hip and treat him with massive doses of antibiotics. In order to be ambulatory, Edwards now needs the aid of assistive devices (e.g., crutches).
A suit was brought against the physicians and hospital. The trial court took notice of the health department’s regulation regarding catheter site changing and ruled that the hospital’s admitted failure to move the heparin lock for at least 3 days constituted negligence per se. The physicians settled with the plaintiff, leaving the hospital as the only defendant. At the close of the plaintiff’s case, the trial court granted the defendant’s motion for a directed verdict. The trial court held that although the negligence per se ruling established the hospital’s breach of a duty to care, the plaintiff could not prove causation.
The superior court reversed the trial court’s directed verdict for the defendant, finding that the evidence presented at trial by the plaintiff was sufficient to allow the claim of causation to go to the jury. The kind of causation evidence the trial court expects cannot be produced. No witness could possibly testify that she saw a
S. aureus bacterium crawl into Mr. Edwards’s hand through the heparin lock site on his third day in the hospital and then multiply into the infection that spread to his artificial hip—yet the trial court’s ruling implied that such showing was necessary to get to the jury.
Once a plaintiff has introduced evidence that a defendant’s negligent act or omission increased the risk of harm to a person in the plaintiff’s position and that, in fact, harm was sustained, it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm.
Is there an issue of corporate negligence? Yes. The plaintiff claimed that the hospital was subject to corporate liability for adopting a 72-hour rule for changing placement of IV catheters. The plaintiff introduced evidence showing that a 48-hour rule was appropriate, but that the hospital adopted a rule allowing IVs to remain in place at the same site for 72 hours. If Edwards could prove that the 72-hour rule was inadequate, that the hospital should have known that it was inadequate, and that following this rule caused him harm, then he has made a proper claim for corporate negligence.
Should the nurse have been faulted for following hospital policy? No. A nurse following hospital rules cannot be faulted. If hospital policy required changing the site of the catheter every 48 hours and the nurse failed to do so, then the nurse could be held negligent and the hospital liable under the theory of respondeat superior.
When faced with the dilemma of two standards for rendering patient care, an organization may find it more attractive to adopt the one that is least restrictive or labor intensive. This could prove to be a costly decision for both the patient and the organization by increasing (1) the risk of patient injury and (2) the organization’s exposure to corporate liability for any injury suffered from following the less restrictive standard.
National patient safety goals provide that proper identification of a patient be conducted prior to performing any procedure. Two patient identifiers are recommended.
Such was not the case in
Meena v. Wilburn,
where the patient injured her leg and developed an ulcer because of poor blood circulation. As a result of the plaintiff’s diabetic condition, the ulcer did not heal. Dr. Maples, a vascular surgeon, performed surgery. Two days following surgery, Dr. Meena was at the hospital covering for one of his partners, Dr. Petro, who had asked him to remove the staples from one of his patients, 65-year-old Slaughter. Slaughter shared a semiprivate room with the plaintiff. Meena testified that he went and picked up Slaughter’s chart at the nurse’s desk and asked one of the nurses which bed Slaughter was in. Meena claimed that he was led to believe that she was in the bed next to the window. He picked up the chart and asked Greer, a nurse, to accompany him to the plaintiff’s room. Shortly thereafter, Meena received an emergency call at the nursing station. He said that he asked Greer to take out the staples because he had to respond to an emergency call at another hospital. Greer conceded during her testimony that, before removing staples from a patient, a nurse should read the chart, be familiar with the chart, look at the patient’s wrist band, and compare the arm band to the chart—all of which she failed to do. Greer rationalized her failure: “When the doctor I work for is standing at the foot of a patient’s bed, I would have no doubt—no reason to doubt what he tells me to do.”
Greer began to remove the plaintiff’s staples. She soon realized that there was a problem. The plaintiff’s skin split open, revealing the layer of fat under the skin. Greer stopped the procedure and left the room to check the medical records maintained at the nursing station. She realized that she had removed staples from the wrong patient. At that point, she encountered Maples and explained to him what had happened. Maples immediately restapled the skin.
Following discharge, the plaintiff’s health began to falter, and she developed a fever of 101°F. The tissue where the staples had been removed became infected. The plaintiff was ultimately readmitted to the hospital; she remained there for approximately 22 days. Her condition gradually improved, and presumably, she had recovered completely with the exception of some scarring and skin indention.
A complaint was filed against Meena and Greer. After 4 days of trial, the jury returned a verdict against Meena and assessed damages in the amount of $125,000. The jury declined to hold the nurse liable for the plaintiff’s injuries. Meena appealed, claiming that the jury’s exoneration of the nurse, who removed the surgical staples, was grounds for a new trial on the issue of the physician’s liability. Further, Meena argued the jury was bound to return a verdict against both defendants, inasmuch as the defendants were sued as joint tort-feasors. The Mississippi Supreme Court held that the jury’s exoneration of Greer was not grounds for a new trial on the issue of the physician’s liability.
This case was settled in 1992. In light of The Joint Commission’s present-day national patient safety goal requiring two forms of patient identification prior to rendering care or treatment, explain how the patient’s injury might have been avoided.
The patient identification process failed in
De Leon Lopez v. Corporacion Insular de Seguros.
16 In this case, Dulce had been discharged from the hospital a day before her twins. When she returned to pick up her twins the following day, she noticed that they did not appear to be identical as they did the prior day. “She asked the nurse why the babies did not ‘look alike.’ The nurse explained that infants change from one day to the next, and assured the anxious mother that the babies were indeed her twin daughters. The nurse also remarked disparagingly that Dulce must be a ‘primeriza,’ that is, a first-time mother. Their concerns assuaged, the parents took the babies home.”
Approximately a year and a half later Gloria, Dulce’s sister, had taken one of her other nieces to a physician’s office with her. Her niece commented to her saying she saw one of her cousins across the room. Gloria approached Mrs. Hernandez, the mother of the young child, and they discussed when and where Mrs. Hernandez had the child who was with her. It turned out that Mrs. Hernandez’s twins were delivered at the same hospital and time as Dulce. Following some blood tests, Dulce and Mrs. Hernandez learned that each had the other’s child. The two babies had been inadvertently or negligently switched after birth.
Following a lawsuit, damages were awarded by the United States District Court for Puerto Rico for the inadvertent switching of two babies. On appeal, the United States Court of Appeals, First Circuit, held: “The record shows, beyond any legitimate question, that the Hospital was negligent and that its negligence set into motion a particularly unfortunate chain of events; thus, the court below did not err in directing a verdict on liability.”
Patient Monitoring and Observation
Nurses have the responsibility to observe the condition of patients under their care and report any pertinent findings to the attending physician. Failure to note changes in a patient’s condition can lead to liability on the part of the nurse and the organization. The recovery room nurse in
Eyoma v. Falco,
19 who had been assigned to monitor a postsurgical patient, left the patient and failed to recognize that the patient stopped breathing. Nurse Falco had been assigned to monitor the patient in the recovery room. She delegated that duty to another nurse and failed to verify that another nurse accepted that responsibility.
Nurse Falco admitted she never got a verbal response from the other nurse, and when she returned there was no one near the decedent. She acknowledged that Dr. Brotherton told her to watch the decedent’s breathing, but claimed she was not told that the decedent had been given narcotics. She maintained that upon her return she checked the decedent and observed his respirations to be eight per minute.
Thereafter, Brotherton returned and inquired about the decedent’s condition. Falco informed the doctor that the patient was fine. However, upon his personal observation, Brotherton realized that the decedent had stopped breathing….
Decedent, because of oxygen deprivation, entered a comatose state and remained unconscious for over a year until his death.
The jury held the nurse to be 100% liable for the patient’s injuries. The court held that there was sufficient evidence to support the verdict.
Failure to Monitor Vital Signs
McCann v. ABC Insurance Co.,
21 an attempt to deliver a baby by forceps was unsuccessful. The obstetrician, Dr. Merrill, testified that he listened to the baby’s heart tone immediately after the failed forceps delivery and that the baby’s heart rate was normal. The baby was then delivered by cesarean section. At birth, the baby was not breathing and had no detectable heartbeat. The baby was resuscitated and transferred to another hospital where he was in a clinically brain-dead state within
hours. Evidence at trial established that during delivery, the baby suffered a severe hypoxic event that caused the death. The plaintiffs instituted a lawsuit against the obstetrician; the hospital and the trial court granted a motion for a directed verdict at the end of the trial and dismissed Merrill, and an appeal was taken.
The plaintiffs’ cause of action was dependent on whether the plaintiffs could show that Merrill or the hospital was negligent in failing to timely diagnose the existence of the hypoxic event. The sole claim against Merrill was the allegation that he failed to properly monitor the baby’s heartbeat or make sure that the nurse properly monitored the baby’s heartbeat after the fetal monitor had been removed. Evidence presented indicated that the standard of care would require that fetal heartbeats be monitored every 10 minutes following removal of the fetal monitor. The evidence presented indicated that this did not occur. Both the defendants’ and plaintiffs’ medical experts agreed that Merrill did not breach the standard of care required in treating McCann. The plaintiffs’ expert testified by deposition that the duty to monitor was a nursing responsibility.
Testimony was needed to show that Merrill breached the standard of care required in treating McCann. Because the plaintiffs failed to provide such testimony, the trial court was found to have correctly granted the directed verdict.
Plaintiffs’ cause of action against … Hospital was predicated primarily upon its failure to have policies and procedures regarding the continuous monitoring of fetal heart tones and its failure to adequately and continuously monitor the unborn infant. The basic thrust of the case was that none of the parties auscultated the baby every 10 minutes after the fetal monitoring device was removed, as required by the standards of the American College of Obstetrics and Gynecology (ACOG). Thus the issue in this case is not whether the baby would have died from other causes even if the Caesarean section had been performed faster, but rather the issue is whether the baby had lost a chance of survival…. [Because] the nurses’ negligent inaction has terminated any chance of survival, conjecture as to other possible causes of death is inadmissible.
Brandon HMA, Inc. v. Bradshaw,
the patient, Bradshaw, had been admitted to Rankin Medical Center (RMC) under the care of Dr. Bobo for treatment of bacterial pneumonia. A general surgeon inserted a chest tube in Bradshaw’s left side to drain some fluid that accumulated. Because of the pain and discomfort associated with a chest tube, Extra Strength Tylenol and Lorcet Plus were prescribed for pain. Bobo also prescribed Ativan to relieve anxiety. During the afternoon and evening following insertion of the chest tube, two nurses periodically checked Bradshaw, took her vital signs, and noted that she exhibited “no distress.” Around 11:00 PM, Lewis, an LPN, was assigned by Nail, the floor’s charge nurse, to provide care to Bradshaw. Before checking on Bradshaw, Lewis reviewed the notes and a tape left by the previous nurse that detailed Bradshaw’s condition. Around midnight, Lewis made his first visit to Bradshaw’s room, took her vital signs, and noted she was experiencing some pain on her left side. Sometime before 1:00 AM, a respiratory therapist checked on Bradshaw and did not notice any problems, but did note that Bradshaw was restless. Shortly after, at 1:00 AM, Lewis made his second visit to Bradshaw’s room. She continued to complain of pain in her chest. Lewis, however, did not take her vital signs. He gave her an Extra Strength Tylenol and made a note indicating that the patient was complaining of pain on the left side and appeared to be in distress. At 2:00 AM during Lewis’s next visit, Bradshaw again complained that she could not sleep and that the pain had increased. Despite her complaints, Lewis again failed to take her vital signs. Instead, he consulted Nail and administered an injection of Ativan to relieve Bradshaw’s anxiety and restlessness. Forty minutes later, Bradshaw again complained of increased pain. Lewis noticed that she was sitting up in bed and her respiration had become short and rapid. Feeling that the earlier Lorcet Plus was wearing off, Lewis administered another dose. Lewis again failed to check Bradshaw’s vital signs.
Nail, while in Bradshaw’s room at 3:00 AM, did not note any problems. When Lewis returned to Bradshaw’s room at 3:30 AM, her condition had significantly worsened. She was nauseated, disoriented, covered in sweat, and did not follow verbal commands. Lewis checked her vital signs and found that her temperature had fallen to 95.8°F. Realizing the seriousness of Bradshaw’s condition, Lewis left the room to find Nail. At this point, testimony among RMC’s employees varies. Lewis and Washington, a nurses’ aide, testified that Lewis found Nail and Washington conversing in the hallway. According to the two testimonies, Nail and Lewis discussed Bradshaw’s condition and returned to the room at 3:40 AM.
When Lewis and Nail returned to the room, they found that Bradshaw was cyanotic, had stopped breathing, and had no pulse. Nail called a “code” and started cardiopulmonary resuscitation (CPR). The code team arrived and revived Bradshaw by administering epinephrine. Bradshaw was transferred to the intensive care unit where she remained comatose for 2 weeks. She was eventually transferred to a rehabilitation center for treatment. While in treatment, magnetic resonance imaging scans of Bradshaw’s brain were ordered and showed evidence of brain damage as a result of lack of oxygen. Bradshaw’s present condition as a result of the cardiopulmonary arrest and hypoxic brain damage is permanent and severe.
Bradshaw filed suit against Brandon HMA, Inc., for negligent nursing care. Bradshaw alleged that nursing personnel failed to properly monitor her and report vital information to her physician and allowed her condition to deteriorate to a critical stage before providing urgently needed care and implementing life support. The jury found in favor of Bradshaw and awarded $9 million in damages. The judge entered a final judgment on the jury verdict, and Brandon filed an appeal.
On appeal, the Supreme Court of Mississippi upheld the judgment of the circuit court. The court found that $9 million did not seem excessive. Bradshaw will live out her years with both emotional and physical pain, and her present existence will not remotely resemble her former life.
Although a nurse’s failure to closely monitor a patient’s vital signs can lead to a patient’s injury or death, not every patient injury can be attributed this failure, as noted in the following case.
FAILURE TO REPEAT VITAL SIGNS
Porter v. Lima Mem’l Hosp., 995 F.2d
9 (6th Cir. 1993)
During an automobile accident, Liesl, an infant, was thrown to the floor of her mother’s car. Rescue squad personnel examined the infant and found nothing seriously wrong. Liesl was transported with her mother, Mrs. Porter, to Hospital A’s emergency department. Ogelsbee, an RN, took Liesl’s vital signs and recorded them on the medical chart. She reported the vital signs to Dr. Singh, the emergency room physician on duty. The only observable sign of injury was a small bruise on the right side of Liesl’s head. Ogelsbee reported this to Singh, who found all of Liesl’s extremities functioning normally and ordered several laboratory tests and X-rays. He did not, however, order any spinal X-rays and failed to diagnose spinal instability. Ogelsbee did not repeat the vital signs during or after Singh’s examination, claiming that she received no physician’s instruction in this regard. After reviewing the X-rays and laboratory tests, Singh discharged Liesl and provided her mother with written instructions concerning her head injuries. While awaiting a ride home, Liesl’s mother reported a short period of irregular breathing by Liesl to one of the nurses. The nurse examined Liesl and determined that nothing was wrong. Porter testified that the nurse told her that “babies just breathe funny.” When she reached home, Porter noted that Liesl’s condition was worsening.
Mrs. Porter decided to take Liesl to Hospital B, where physicians determined that Liesl’s legs were not moving. They ordered X-rays and laboratory tests, and eventually, another hospital staff physician diagnosed a subluxation at her first and second lumbar vertebrae, which resulted in Liesl’s paralysis from the waist down. Experts who testified in trial agreed that Liesl suffered paralysis sometime after Singh’s examination and before her arrival at Hospital B.
Singh was the primary person who could have prevented the spinal injury by diagnosing Liesl’s unstable spine before it became critically injured. Singh settled for $2.5 million. The district court denied the hospital’s motion for judgment, notwithstanding the verdict in favor of the mother, but ordered a new trial, at which the jury found the hospital not liable for the infant’s injuries. Both the hospital and the mother appealed.
Did the conduct of Hospital A’s nurses proximately cause the infant’s paralysis?
The U.S. Court of Appeals for the Sixth Circuit held that the nurses’ failure to repeat vital signs was legally insufficient to establish a connection between the failure to repeat vital signs and the eventual paralysis.
The experts on both sides generally agreed that the nurses had no independent duty, apart from a physician’s instructions, to immobilize the infant. The plaintiff’s experts made it clear that the physician is ultimately responsible for determining the patient’s medical diagnosis and then to order the necessary and appropriate medical treatment. Singh did not diagnose any spinal cord injury and discharged the baby after examining and X-raying the infant. It was Singh who was responsible for treating Liesl’s spinal cord injury, or at least he was responsible for ordering Liesl to be immobilized and hospitalized for further care and workup. The vital signs had no causal relationship to the paralysis.
1. Discuss the importance of patient assessment and documentation.
2. Discuss the importance of collaboration of the transporting ambulance crew with the receiving hospital’s nurses and physicians.
Delay in Monitoring Fetus
The plaintiffs’ experts in
Northern Trust Co. v. University of Chicago Hospitals and Clinics
24 supported their contention that an obstetrical nurse’s delay in placing a fetal monitor and an additional delay caused by the unavailability of a second operating room for a cesarean section caused an infant’s mental retardation. Although there was contrary expert opinion, there was no error in the trial court’s denial of the hospital’s motion for judgment notwithstanding the verdict.
Monitor Alarm Disconnected
Odom v. State Department of Health and Hospitals,
25 the appeals court held that the decedent’s cause of death was directly related to the absence of being placed under the watch of a heart monitor. Jojo was born 12 weeks prematurely at the HPL Medical Center. Jojo remained in a premature infant’s nursery and was eventually placed into two different foster homes prior to his admission to Pinecrest foster home. While Jojo was a Pinecrest resident, Mr. and Mrs. Odom adopted Jojo. He was unable to feed himself and was nourished via a gastrostomy tube. Because he suffered from obstructive apnea, he became dependent on a tracheostomy (trach) tube.
At Pinecrest, Jojo was assigned to Home 501. While making patient rounds, Ms. Means found Jojo with his trach tube out of the stoma. She called for help, and Ms. Wiley, among others, responded. Wiley immediately took the CPR efforts under her control. She noticed that Jojo was breathless and immediately reinserted the trach tube. She then noticed that Jojo was still hooked to a monitor.
No one had heard the heart monitor’s alarm sound. Means asserted that the monitor was on, because she saw that the monitor’s red lights were blinking, indicating the heart rate and breathing rate. She stated that she took the monitor’s leads off of Jojo to put the monitor out of the way, but the alarm did not sound. CPR efforts continued while Jojo was placed on a stretcher and sent by ambulance to HPL. Jojo was pronounced dead at HPL’s emergency department at 7:02 PM.
The Odoms filed a petition against Pinecrest, alleging that Jojo’s death was caused by the negligence and fault of Pinecrest, its servants, and employees. Judgment was for the plaintiffs. The trial court’s reasons for judgment were enlightening because it stated that the monitor should have been on but was, however, disconnected by the staff and that this was the cause, in fact, of Jojo’s injury. The appeals court found that the record supported the trial court’s findings. There was overwhelming evidence upon which the trial court relied to find that the monitor was turned off, in breach of the various physicians’ orders with which the nurses should have complied. The monitor was supposed to be on Jojo to warn the nurses of any respiratory distress episodes that he might experience. A forensic pathologist’s report showed the cause of Jojo’s death to be hypoxia, secondary to respiratory insufficiency, secondary to apnea episodes. Thus, Jojo’s cause of death was directly related to the absence of being placed under the watch of a heart monitor.
Defective Monitoring Equipment
Failure to report defective equipment can cause a nurse to be held liable for negligence if the failure to report is the proximate cause of a patient’s injuries. The defect must be known and not hidden from sight.
Delay in Reporting Patient’s Condition
An organization’s policies and procedures should prescribe the guidelines for staff members to follow when confronted with a physician or other healthcare professional whose action or inaction jeopardizes the well-being of a patient. Guidelines in place, but not followed, are of no value, as the following cases illustrate. Such was the case in
Goff v. Doctors General Hospital,
in which the court held that nurses who knew that a woman they were attending was bleeding excessively were negligent in failing to report the circumstances so that prompt and adequate measures could be taken to safeguard her life.
The plaintiff in
Utter v. United Hospital Center, Inc.
suffered an amputation that the jury determined resulted from the failure of the nursing staff to properly report the patient’s deteriorating condition. The nursing staff, according to written procedures in the nursing manual, was responsible for reporting such changes. It was determined that deviation from hospital policy constituted negligence.
Cuervo v. Mercy Hospital, Inc.,
Cuervo was admitted to Mercy Hospital by Dr. Iglesias to undergo routine diagnostic cardiac tests. After performing the catheterization on Cuervo, Iglesias decided to perform a balloon angioplasty procedure; Iglesias was not authorized to perform this procedure. Unfortunately, in carrying out this procedure, Iglesias inserted the catheter into the wrong artery in Cuervo’s right leg. This compromised the blood flow to the leg, causing loss of pulse and sensation. This error was compounded when Mercy Hospital’s nurses on Cuervo’s floor were unable to reach Iglesias for 6 hours and never attempted to reach Dr. Milian, the backup physician, to alert them of Cuervo’s deteriorating condition.
The following day, Dr. Pena attempted an arteriogram to treat the right leg. Regrettably, Pena accessed the wrong artery in the left leg, compromising the blood flow to that leg as well. Shortly thereafter, Cuervo began to lose pulse and sensation in his left leg. The hospital’s nurses never reported this condition to the physicians. Sometime later, Milian performed surgery to attempt to restore circulation to the right leg; the surgery was unsuccessful. Two hours later, surgery was performed on the left leg; the surgery failed to restore circulation to that leg. Thereafter, both legs required amputation.
Cuervo sued the physicians and hospital, asserting that the hospital was negligent based on the nurses’ failure to promptly notify a physician of his condition and asserting corporate negligence against the hospital based on the unauthorized procedure. Cuervo’s experts testified at deposition that if the nursing staff had contacted a physician when the symptoms were first detected, the amputations would not have been necessary. Relying on the same experts’ testimony, the hospital filed a motion for summary judgment, asserting that any acts or omissions of its nurses were not the proximate cause of Cuervo’s injuries. The hospital’s motion for summary judgment did not raise any issue as to whether the hospital breached its duty to Cuervo by allowing a medical doctor to perform unauthorized procedures or by failing to provide adequate nursing care. The hospital’s motion solely disputed causation. The court granted the motion and entered final summary judgment in the hospital’s favor.
On appeal, the court determined that when both parties to a lawsuit rely on testimony from the same experts and then draw diametrically opposed conclusions, the jury should be given opportunity to weigh the evidence and determine whether the hospital’s conduct was the proximate cause of the patient’s injuries. The court case was remanded to trial.
Hiatt v. Grace,
29 on appeal by the hospital and the nurse, the Kansas Supreme Court held that there was sufficient evidence to authorize the jury to find that the nurse was negligent in failing to timely notify the physician that delivery of the plaintiff’s child was imminent. This delay resulted in an unattended childbirth with consequent injuries. The trial court had awarded the plaintiff $15,000.
Citizens Hospital Association v. Schoulin,
30 an accident victim sued the hospital and the attending physician for their negligence in failing to discover and properly treat his injuries. The court held that there was sufficient evidence to sustain a jury verdict that the hospital’s nurse was negligent in failing to inform the physician of all the patient’s symptoms, to conduct a proper examination of the plaintiff, and to follow the directions of the physician. Thus, because the nurse was the employee of the hospital, the hospital was liable under the doctrine of respondeat superior.
In another case, arising from the death of a hospital patient following hernia surgery, evidence supported findings that both the patient’s treating physician and the hospital deviated from their applicable standards of care and that the deviations were the cause of the patient’s death. The applicable standard of care required the nurse to notify the physician if the patient complained of restlessness and had a heart rate fluctuating between 120 and 1
. If the cardiologist had been called, it was probable that the patient could have been successfully treated. Hospital personnel had deviated from the standard of care when they observed bleeding from the patient and did not inform the physician, and the physician deviated from the standard of care when he failed to call a cardiac consult for the patient. In addition, a nursing expert testified that the nurse had deviated from the standard of care when he failed to call the physician when the patient pulled off his oxygen mask and complained of difficulty breathing.
The failure of nurses to follow adequate nursing procedures in treating decubitus ulcers was found to be a factor leading to the death of a nursing facility resident in
Montgomery Health Care v. Ballard.
Two nurses testified that they did not know that decubitus ulcers could be life threatening. One nurse testified that she did not know that the patient’s physician should be called if there were symptoms of infection. Such allegations would indicate that there was a lack of training and supervision of the nurses treating the patient. The seriousness of such failure was driven home when the court allowed $2 million in punitive damages.
Delay in Treatment
Howerton was the only patient in the labor and delivery room on March 27 at Mary Immaculate Hospital. Dr. O’Connell, Howerton’s obstetrician, directed hospital nurses to administer Pitocin (a drug to induce labor) to Howerton.
33 When Dr. O’Connell examined her at 2:25 PM, she thought that Howerton was in the early stages of labor and directed that Pitocin be continued. At 3:00 PM, Howerton testified that she experienced intense abdominal pains. Mr. Howerton went to the nurses’ station and described to the nurses that his wife was in severe pain. The nurses said that it would take a few minutes because they were in the middle of a shift change. Later, Howerton’s mother went to the nurses’ station and stated that her daughter needed help now. She received the same response from the nurses. Two of the nurses eventually came to the room at 3:15 PM after Howerton’s father demanded their help. There was a further delay in contacting the doctor because one nurse suggested they not call the doctor yet. Then, at 3:23 PM, another nurse, who disagreed, paged Dr. O’Connell. When Dr. O’Connell answered the emergency page at 3:25 PM, she was advised that the undelivered baby’s heart rate was in the
s to 70s (a normal heart rate being from 120 to 160) and that the mother was having abdominal pain. Dr. O’Connell, while driving to the hospital, called the labor room at 3:30 PM and learned that the baby’s heart rate remained in the 60s to 70s. Dr. O’Connell was able to deliver Howerton’s daughter Kacie by cesarean section at 3:55 PM. After Kacie’s delivery, it was discovered that the mother’s uterus had ruptured in three places during labor, resulting in extensive neurologic damage to Kacie.
A lawsuit was filed and at trial, Holder, a nurse expert witness, opined that the labor and delivery room nurses should have immediately gone to Howerton when they were notified of the worsening pain, evaluated her condition, and notified her physician. Dr. Juskevitch, who testified as an expert witness, stated that the intensity of labor pains prior to delivery of the baby could indicate a ruptured uterus or a separation of the placenta. Dr. Juskevitch explained that a tearing of the uterus presented challenges to the unborn baby, which began when the first tear occurred at 3:00 PM, and were evident at 3:17 PM when the nurses went into the room and realized that the baby’s heart rate was erratic. Dr. Juskevitch opined that if Dr. O’Connell had been informed at 3:09 PM, the baby would have been delivered by 3:
PM. Because O’Connell was not advised by the nurses of the change in the mother’s condition until 3:25 PM, the baby was not delivered until 3:55 PM, 30 minutes after O’Connell responded to the delayed page. This delayed delivery took place 46 minutes after the doctor should have been called at 3:09 PM. According to Dr. White, a child neurologist called as an expert witness by the plaintiff, testified that if the baby had been delivered by 3:40 PM, she would have sustained no neurologic damage.
When the jury was unable to agree on a verdict following deliberation for over 2 days, the court discharged the jury, declared a mistrial, and, after additional argument, finally struck the plaintiffs’ evidence and entered summary judgment for the defendant, and the plaintiffs appealed.
The Supreme Court of Virginia concluded that the evidence was sufficient to raise a jury issue regarding the nurses’ negligence, holding that the trial court erred in striking the plaintiffs’ evidence and in entering summary judgment for the defendant. The case was remanded for a new trial.
Failure to Follow Orders
Nurses have periodically found themselves in a lawsuit because of their failure to follow orders. Several cases below involve the failure to follow written orders, verbal orders, and a supervisor’s orders.
In July 1998, Kitchen became a resident of Wickliffe nursing home.
She had been a patient of the appellant, Dr. Muenster, since 19
. While Kitchen resided in the nursing home, Muenster continued to act as her treating physician. When Kitchen entered Wickliffe, she had been receiving Coumadin, a blood thinner that requires monitoring by specific blood tests on a periodic basis. These blood tests were needed in order to adjust the dosage of Coumadin if necessary. Muenster had written the orders for the nurses to conduct blood tests every Wednesday. On July 29, 1998, the nurses administered these tests and faxed the results to Muenster. Kitchen continued to receive Coumadin at the dosage prescribed by Muenster even though the nurses apparently failed to conduct subsequent weekly blood tests. Likewise, Muenster did not receive any reports concerning the blood test results. During this time, Muenster made no further effort to check up on the resident. On August 19, 1998, Kitchen was found in distress and was transported to a hospital, where she went into renal failure and later lapsed into a coma and died as a result of toxic levels of Coumadin.
The appellees filed suit against Muenster and Wickliffe, alleging negligence and wrongful death. After appellees settled with Wickliffe, the case proceeded against Muenster. Following trial, the jury returned a verdict in favor of the physician, and the plaintiffs/appellees moved for a new trial. The appellees maintained that Muenster had a responsibility to follow up and make sure that the nurses fulfilled his orders. The appellees argued that if the jury found the nurses negligent in failing to follow the physician’s orders, then the jury also should have found the physician negligent on the basis that he controlled the performance of the nurses.
Muenster claimed that there was absolutely no evidence to establish that he had a right to control or direct the performance of the nurses beyond the issuance of the orders in question. Thus, the negligence of the nurses could not be imputed to him. The trial court granted the appellees’ motion for a new trial.
The Ohio Court of Appeals found that other than the issuance of treatment orders, there was no evidence presented at trial that established Muenster had the right to control and direct the performance of the nurses at the nursing home.
Failure to take correct telephone orders can be just as serious as failure to follow, understand, and/or interpret a physician’s order(s). Nurses must be alert in transcribing orders because there are periodic contradictions between what physicians claim they ordered and what nurses allege was ordered. Orders should be read back, once transcribed, for verification purposes. Verification of an order by another nurse on a second telephone is helpful, especially if an order is questionable. Any questionable orders must be verified with the physician initiating the order. Physicians must authenticate their verbal order(s) by signing the written order in the medical record. Nurses who disagree with a physician’s order should not carry out an obviously erroneous order. In addition, they should confirm the order with the prescribing physician and report to the supervisor any concerns they may have with a particular order.
The evidence in
Redel v. Capital Reg. Med. Ctr.
35 noted that nurses failed to follow the treating doctor’s orders and established a submissible case of medical negligence against the hospital. It was established that, following bilateral knee replacement surgery, the action of nurses caused permanent drop foot in the patient. They failed to follow the doctor’s
verbal orders to watch the patient closely and to place him in one continuous passive motion machine at a time during physical therapy.
Failure of a nurse to follow the instructions of a supervising nurse to wait for her assistance before performing a procedure can result in the revocation of the nurse’s license. The nurse in
Cafiero v. North Carolina Board of Nursing
36 failed to heed instructions to wait for assistance before connecting a heart monitor to an infant. The heart monitor was connected incorrectly and resulted in an electrical shock to the infant. The board of nursing, under the nursing practice act of the state, revoked the nurse’s license. The board had the authority to revoke the nurse’s license even though her work before and after the incident had been exemplary. The dangers of electric cords are within the realm of common knowledge. The record showed that the nurse failed to exercise ordinary care in connecting the infant to the monitor.
Leaving Patient Unattended
The Navy veteran in
Vanhoy v. United States
successfully underwent coronary bypass surgery at the Veterans Affairs Medical Center. However, he was injured as a result of being left unattended for several hours by nursing personnel in the intensive care unit. The veteran suffered anoxic brain injury following a complication with his endotracheal tube and was left permanently disabled. An action was brought under the Federal Tort Claims Act.
The trial court awarded a lump-sum payment of $3,500,000 to the veteran for future medical care and services. On appeal, the trial court was found to have properly required the federal government to make an immediate lump-sum payment of future medical damages to the veteran.
Failure to Record Patient’s Care
The plaintiff in
Pellerin v. Humedicenters, Inc.
went to the emergency department at Lakeland Medical Center complaining of chest pain. An emergency department physician, Dr. Gruner, examined her and ordered a nurse to give her an injection consisting of 50 mg of Demerol and 25 mg of Vistaril. Although the nurse testified that she did not recall giving the injection, she did not deny giving it, and her initials were present in the emergency department record as having administered the medication. The nurse admitted that she failed to record the site and mode of injection. She said she might have written this information in the nurse’s notes, but no such notes were admitted into evidence.
The plaintiff testified she felt pain and a burning sensation in her hip during an injection. The burning persisted and progressively worsened over the next several weeks. The pain spread to an area approximately 10 inches in diameter around the injection site. She could not sleep on her right side, work, perform household chores, or participate in sports without experiencing pain.
The appeals court found that there was sufficient evidence to support a jury finding that the nurse had breached the applicable standard of care in administering an injection of Vistaril into Pellerin’s hip. The jury awarded the plaintiff $90,304.68 in total damages. The nurse admitted that she failed to record the site and mode of injection in the emergency department records. According to the testimony of two experts in nursing practice, failing to record this information is below the standard of care for nursing.
Nurses are required to handle and administer a vast variety of drugs that are prescribed by physicians and dispensed by an organization’s pharmacy. Medications may range from aspirin to highly dangerous drugs (e.g., potassium chloride) administered through IV solutions. Medications must be administered in the prescribed manner and dose to prevent serious harm to patients.
The practice of pharmacy includes the ordering, preparation, dispensing, and administration of medications. These activities may be carried out only by a licensed pharmacist or by a person exempted from the provisions of a state’s pharmacy statutes. Nurses are exempted from the various pharmacy statutes when administering a medication on the oral or written order of a physician.
Failure to Administer Drugs
The trial court in
Lloyd Noland Hospital v. Durham
39 did not err in denying a hospital’s motion for a new trial based on the hospital’s argument that it did not breach an applicable standard of care in failing to administer a preoperative antibiotic to a patient. The record contained ample evidence of the existence of a standing order that required the nursing staff to administer preoperative antibiotics to patients prior to being treated.
Kallenberg v. Beth Israel Hospital,
40 a patient died after her third cerebral hemorrhage because of the failure of the physicians and staff to administer necessary medications. When the patient was admitted to the hospital, her physician determined that she should be given a specific drug to reduce her blood pressure and make her condition operable. For an unexplained reason, the drug was not administered. The patient’s blood pressure rose, and after the final hemorrhage, she died. The jury found the hospital and physicians negligent by failing to administer the drug and ruled that the negligence caused the patient’s death. On appeal, the appellate court found that the jury had sufficient evidence to decide that the negligent treatment had been the cause of the patient’s death.
Failure to Document Drug Wastage
The nurse in
Matthias v. Iowa Board of Nursing
41 failed to conform to minimum standards of practice by neglecting to document the loss or wastage of controlled substances. The minimum standard of acceptable practice requires nurses to count controlled substances each shift, to document all loss or wastage of controlled substances, and to obtain the signature of a witness to the disposal of controlled substances. Iowa Code allows a professional license to be suspended or revoked when the licensee engages in professional incompetency. Iowa Administrative Code section 655 4.19(2)(c), which regulates the actions of the board, defines professional incompetency as including “[w]illful or repeated departure from or failure to conform to the minimum standards of acceptable and prevailing practice of nursing in the state of Iowa.”
Matthias argued that the board erred as a matter of law because it failed to find that she knowingly or willfully failed to conform to the minimum standards of practice regarding documentation of loss or wastage of controlled substances. The Iowa Court of Appeals found that there was substantial evidence supporting the board’s finding that Matthias engaged in repeated departures from the minimum standards of nursing. The board, therefore, did not need to find that the departure was also willful.
Administering Drugs without a Prescription
People v. Nygren,
42 evidence was considered sufficient to establish probable cause for charging the director of nursing and a charge nurse with second-degree assault in the administration of unprescribed doses of Thorazine to a resident at a time when the patient was incapable of providing consent. There was probable cause to believe that the defendants committed the offense charged and that it would have been established if the prosecution had been permitted to present its witnesses, two of whom would have testified that the nurses administered the unprescribed doses of the drug. The treating physician told the special investigator from the attorney general’s office that Thorazine never had been prescribed for the resident while he was in the nursing facility. The resident was mentally retarded and incapable of consenting to administration of the drug. Medical evidence of the amount of Thorazine in the resident’s blood was consistent with stupor and impairment of physical and mental functions.
Administering Wrong Medication
Abercrombie v. Roof,
a solution was prepared by a nurse employee and injected into the patient by a physician. The physician made no examination of the fluid, and the patient suffered permanent injuries as a result of the injection. An action was brought against the physician for malpractice. The patient claimed that the fluid injected was alcohol and that the physician should have recognized its distinctive odor. In finding for the physician, the court stated that he was not responsible for the misuse of drugs prepared by an employee unless the ordinarily prudent use of his faculties would have prevented injury to the patient.
Failure to Clarify Orders
A nurse is responsible for making an inquiry if there is uncertainty about the accuracy of a physician’s medication order in a patient’s record. In the Louisiana case of
Norton v. Argonaut Insurance Co.,
the court focused attention on the responsibility of a nurse to obtain clarification of an apparently erroneous order from the patient’s physician. The medication order, as entered in the medical record, was incomplete and subject to misinterpretation. Believing the order to be incorrect because of the dosage, the nurse asked two physicians present on the patient care unit whether the medication should be given as ordered. The two physicians did not interpret the order as the nurse did and, therefore, did not share the same concern. They advised the nurse that the attending physician’s instructions did not appear out of line. The nurse did not contact the attending physician but instead administered the misinterpreted dosage of medication. As a result, the patient died from a fatal overdose of the medication.
The court upheld the jury’s finding that the nurse had been negligent in failing to verify the order with the attending physician prior to administering the drug. The nurse was held liable, as was the physician who wrote the ambiguous order that led to the fatal dose. The court noted that it is the duty of a nurse to make absolutely certain what the physician intended, regarding both dosage and route. This clarification was not sought from the physician who wrote the order.
Administration of the Wrong Dosage
The nurse in
Harrison v. Axelrod
was charged with patient neglect because she administered the wrong dosage of the drug Haldol to a patient on seven occasions while she was employed at a nursing facility. The patient’s physician had prescribed a 0.5-mg dosage of Haldol. The patient’s medication record indicated that the nurse had been administering dosages of 5.0 mg, the dosage sent to the patient care unit by the pharmacy. A Department of Health investigator testified that the nurse admitted that she administered the wrong dosage and that she was aware of the facility’s medication administration policy, which she breached by failing to check the dosage supplied by the pharmacy against the dosage ordered by the patient’s doctor. The nurse denied that she made these admissions to the investigator. The commissioner of the Department of Health made a determination that the administration of the wrong dosage of Haldol on seven occasions constituted patient neglect.
On appeal, the New York Supreme Court, Appellate Division, held that the evidence established that the nurse administered the wrong dosage of the prescribed drug Haldol to the patient. This was a breach of the facility’s medication administration policy and was sufficient to support the determination of patient neglect.
NEGLIGENT DRUG OVERDOSE
Harder v. Clinton, Inc., 948 P.2d 298 (Okla. 1997)
Kayser was admitted to a nursing home on July 14, 1992. On the evening of September 30, she was transferred to a hospital after ingesting an overdose of tolbutamide, a diabetic medication. She was diagnosed as having a hypoglycemic coma caused by the lowering of her blood sugar from ingestion of the medication. An IV device was inserted in the dorsum area of her right foot to treat the coma. Gangrene later developed in the same foot, which eventually required an above-the-knee amputation.
As Kayser’s guardian, Harder, Kayser’s sister, brought a suit against the nursing home for harm caused to Kayser by an overdose of the wrong prescription administered to her while she was in the nursing home’s care and custody. At the close of Harder’s case, which followed a
res ipsa loquitur pattern of proof, the trial court directed a verdict for the nursing home. The trial court ruled that Harder’s evidence fell short of establishing a negligence claim because her proof failed to show all the requisite foundational elements for res ipsa loquitur.
Did the trial court err when it directed a verdict for the nursing home based on its ruling that Harder had not satisfied the requirements for a
res ipsa loquitur submission?
By the evidence adduced at trial, Harder met the standards for submission of her claim based on the doctrine of res ipsa loquitur pattern of proof.
In light of the circumstances that surround the injurious event, it seems reasonably clear that Kayser’s ingestion of a tolbutamide overdose would not have taken place in the absence of negligence by the nursing home’s staff. The record shows that Kayser had not been prescribed any diabetes medication while a resident at the nursing home and that she had never been prescribed that type of hypoglycemic drug. Testimony indicates Kayser was at the nursing home when she ingested the prescribed medication. There is no direct evidence that anyone else supplied to her the harm-dealing dosage or that the substance in question was kept in her room (or elsewhere within her control). Neither is there indication that any other cause contributed to the coma. According to Ms. Dixon, a licensed practical nurse and a medication clerk at the nursing home are responsible for the administration of medication to its residents. The administration of the wrong medication in an amount so excessive as to harm a resident is below the applicable standard of care.
Harder’s evidence laid the requisite res ipsa loquitur foundation facts from which it could be inferred that the injury—from an overdose of the wrong prescription—was one that would not ordinarily occur in the course of controlled supervision and administration of prescribed medicine in the absence of negligence. The responsibility for producing proof that would rebut the inferences favorable to Harder’s legal position was thus shifted to the defendant.
1. Describe the elements the plaintiff’s attorney had to establish under the doctrine of res ipsa loquitur.
2. Describe what procedures you would implement to reduce the likelihood of similar occurrences.
Administering by the Wrong Route
The nurse in
Fleming v. Baptist General Convention
46 negligently injected the patient with a solution of Talwin and Atarax subcutaneously, rather than intramuscularly. The patient suffered tissue necrosis as a result of the improper injection. The suit against the hospital was successful. On appeal, the court held that the jury’s verdict for the plaintiff found adequate support in the testimony of the plaintiff’s expert witness on the issues of negligence and causation.
Failure to Discontinue Medication
A healthcare organization will be held liable if a nurse continues to inject a solution into a patient after noticing its ill effects. In the Florida case of
Parrish v. Clark,
47 the court held that a nurse’s continued injection of saline solution into an unconscious patient’s breast after the nurse noticed ill effects constituted negligence. After something was observed to be wrong with the administration of the solution, the nurse had a duty to discontinue its use.
Failure to Identify Correct Patient
A patient’s identification bracelet must be checked prior to administering medications. To ensure that the patient’s identity corresponds to the name on the patient’s bracelet, the nurse should address the patient by name when approaching the patient’s bedside to administer any medication. Should a patient unwittingly be administered another patient’s medication, the attending physician should be notified, and appropriate documentation should be placed on the patient’s chart.
Failure to Note Order Change
Larrimore v. Homeopathic Hospital Association,
48 the physician wrote an instruction on the patient’s order sheet changing the method of administration from intramuscular to oral. When a nurse on the patient unit who had been off duty for several days was preparing to medicate the patient by injection, the patient objected and referred the nurse to the physician’s new order. The nurse, however, told the patient she was mistaken and administered the medication intramuscularly. The court went on to say that the jury could find the nurse negligent by applying ordinary common sense to establish the applicable standard of care.
Failure to Follow Infection-Control Procedures
Failure to follow proper infection-control procedures (e.g., proper hand-washing techniques) can result in cross-contamination among patients, staff, and visitors. Staff members who administer to patients, moving from one patient to another, must wash their hands after changing dressings and carrying out routine procedures.
The patient in
Helmann v. Sacred Heart Hospital
was returned to his room following hip surgery. The patient’s roommate complained of a boil under his right arm. A culture was taken of drainage from the wound and was identified as
Staphylococcus aureus. The infected roommate was transferred immediately to an isolation room. Until this time, hospital employees administered to both patients regularly, moving from one patient to another without washing their hands as they changed dressings and carried out routine procedures. On the day the roommate was placed in isolation, the plaintiff’s wound erupted, discharging a large amount of purulent drainage. A culture of the drainage showed it to have been caused by the presence of
S. aureus. The infection penetrated into the patient’s hip socket, destroying tissue and requiring a second operation. The court ruled that there was sufficient circumstantial evidence from which the jury could have found that the patients were infected with the same
S. aureus strain and that the infection was caused by the hospital’s employees’ failure to follow sterile techniques in ministering to its two patients.
The patient in
Howard v. Alexandria Hosp.
50 brought a medical malpractice action against the hospital, seeking damages arising out of an operation performed with unsterile instruments. During her stay in the recovery room, the operating surgeon reported to the patient that she had been operated on with unsterile instruments. Allegedly, the nurse in charge of the autoclave used to sterilize the instruments did not properly monitor the sterilization process. Because of the patient’s fear of a variety of diseases, she was administered several human immunodeficiency virus tests. The patient was evaluated by an infectious disease specialist and was administered antibiotics intravenously. Following her discharge, the patient was placed on several medications and, as a result, developed symptoms of pseudomembranous enterocolitis. Testimony described the patient’s symptoms as resulting from the administration of the antibiotics. One expert testified that the patient had reason to be concerned for at least 6 months following the surgical procedure because of her risk of being infected with a variety of diseases. The hospital argued that the patient suffered no physical injury from the surgical procedure and the instruments used during the procedure. The circuit court entered summary judgment for the hospital on the grounds that no physical injury had been shown.
The Virginia Supreme Court held that the patient suffered injury resulting from measures taken to avoid infection following discovery of the use of unsterile instrumentation, even though the patient did not sustain any infection from use of the instruments. The case was reversed and remanded for a new trial on all issues.
Injury can be either physical or mental. It is clear that because of the hospital’s use of inadequately sterilized instruments, the plaintiff sustained positive physical and mental injury. As the direct result of the wrong, IV tubes and needles invaded the plaintiff’s body. She experienced physical pain and the discomforts of headache, nausea, vomiting, fever, chills, and unusual sweating.
The following cases review several of the many procedures that can result in negligent acts that involve nurses.
Burns from Bovie Machine
The negligent use of a Bovie plate led to liability in
Monk v. Doctors Hospital,
51 in which a nurse had been instructed by the physician to set up a Bovie machine. The nurse placed the contact plate of the Bovie machine under the patient’s right calf in a negligent manner, and the patient suffered burns. The patient introduced instruction manuals issued by the manufacturer supporting a claim that the plate was placed improperly. These manuals had been available to the hospital. The trial court directed a verdict in favor of the hospital and the physician. The appellate court found that there was sufficient evidence from which the jury could conclude that the Bovie plate was applied in a negligent manner. There was also sufficient evidence, including the manufacturer’s manual and expert testimony, from which the jury could find that the physician was independently negligent.
The plaintiffs in
Morris v. Children’s Hospital Medical Center
52 alleged in their complaint that, while hospitalized at Children’s Hospital Medical Center, the patient suffered a laceration to her arm as a result of treatment administered by the defendants and their agents that fell below the accepted standard of care. Morris alleged from personal observation that the laceration to her daughter’s arm was caused by the jagged edges of a plastic cup that had been split and placed on her arm to guard an IV site. A nurse, in her affidavit, who stated her qualifications as an expert, expressed her opinion that the practice of placing a split plastic cup over an IV site as a guard constituted a breach of the standard of nursing care.
Bernardi v. Community Hospital Association,
a 7-year-old patient was in the hospital after surgery for the drainage of an abscessed appendix. The attending physician left a written postoperative order requiring an injection of tetracycline every 12 hours. During the evening of the first day after surgery, the nurse, employed by the hospital and acting under this order, injected the prescribed dosage of tetracycline in the patient’s right gluteal region. It was claimed that the nurse negligently injected the tetracycline into or adjacent to the sciatic nerve, causing the patient to permanently lose the normal use of the right foot. The court did not hold the physician responsible. It concluded that if the plaintiff could prove the nurse’s negligence, the hospital would be responsible for the nurse’s act under the doctrine of respondeat superior. The physician did not know which nurse administered the injection because he was not present when the injection was given, and he had no opportunity to control its administration. The hospital was found liable under respondeat superior. The hospital was the employer of the nurse: Only it had the right to hire and fire her, and only it could assign the nurse to certain hours, designated areas, and specific patients.
Cutting IV Tube Results in Amputation
A nurse employed by the defendant in
Ahmed v. Children’s Hospital of Buffalo
amputated nearly one third of a 1-month-old infant’s index finger while cutting an IV tube with a pair of scissors. Surgery to reattach the amputated portion of the finger was unsuccessful. The plaintiffs were awarded $87,000 for past pain and suffering and $50,000 for future damages. The defendant moved to set aside the verdict and sought a new trial, claiming that damages were excessive. The trial court rejected much of the testimony presented by the plaintiffs.
An appeals court determined that it was the jury’s function to assess the credibility of witnesses and to evaluate the testimony regarding the child’s pain, suffering, and disability. The trial court was found to have improperly invaded the jury’s province to evaluate the nature and extent of the injury. The appellate court found that the jury’s award of damages did not deviate materially from what would be reasonable compensation. The jury’s verdict was reinstated.
Foreign Objects Left in Patients
There are many cases involving foreign objects left in patients during surgery. The hospital in
Ross v. Chatham County Hospital Authority
55 was properly denied summary dismissal of an action in which a patient sought to recover damages for injuries suffered when a surgical instrument was left in the patient’s abdomen during surgery. This incident occurred as a result of the failure of the operating room personnel to conduct an instrument and sponge count after surgery. The borrowed servant doctrine did not insulate the hospital from the negligence of its nurses because the doctrine applies only to acts involving professional skill and judgment. Foreign objects negligently left in a patient’s body constitute an administrative act. A standard nursing check-off procedure should be used to account for all sponges and/or instruments used in the operating room. Preventative measures of this nature will reduce a hospital’s risk of liability.
The decedent’s estate in
Holger v. Irish
56 sued the surgeon and the hospital that employed the nurses who assisted the surgeon during the operation performed on the deceased. During the course of performing colon surgery, the surgeon placed laparotomy sponges in the decedent’s abdomen. After he had removed the sponges at the end of surgery, the two nurses assisting him counted them and verified that they had all been removed. Two years later, a sponge was discovered in the patient’s abdomen. It was removed, and the 92-year-old patient died. The jury decided in favor of the defendants, and the decedent’s estate appealed. The court of appeals reversed the decision, and the Oregon Supreme Court reviewed the case.
The Oregon Supreme Court held that the surgeon was not vicariously liable, as a matter of law, for the negligence of the operating room nurses. There was no evidence presented that the nurses were the defendant’s employees or that they were under the supervision or control of the defendant regarding their counting of the sponges. It was their sole responsibility to count the sponges. The nurses had been hired and trained by the hospital, which paid for their services.
Shared Responsibility for Sponge Counts
Romero v. Bellina
57 describes how both nurses and surgeons are responsible for sponge counts. Bellina performed laser surgery on Romero at the hospital. During surgery, Bellina was assisted by Markey and Toups, surgical nurses employed by the hospital. Before the final suturing of the incision, the nurses erroneously informed Bellina that all the lap pads had been accounted for.
The day after the procedure, Romero complained of severe abdominal pain. A few months later, she discovered a mass in her abdomen near the area where the surgery was performed. She visited her treating physician, Dr. Blue, who determined through an X-ray that the mass in her abdomen was a lap sponge from the surgery with Bellina. Romero underwent corrective surgery with a different physician to remove the sponge.
The plaintiffs settled their claims with the hospital, and the case proceeded to trial against Bellina. After a bench trial, the trial court rendered judgment in favor of the plaintiffs for $170,966.41, and Bellina filed an appeal.
In ruling against Bellina, the trial court held that a surgeon’s duty to remove foreign objects placed in a patient’s body is an independent, nondelegable duty. The trial court found that Bellina was 70% at fault and the nurses employed by the hospital were 30% at fault. On appeal, Bellina argued that the trial judge erred in concluding that, in Louisiana, a surgeon cannot rely on surgical nurses to count sponges to make sure none are left inside a patient. Prevailing case law in Louisiana, however, holds that a surgeon has a nondelegable duty to remove all sponges placed in a patient’s body.
The Louisiana Court of Appeal held that although nurses have an independent duty, apart from the surgeon’s duty, to account for the sponges, and that they can be concurrently at fault with the surgeon for leaving a sponge in the patient’s body, the nurses’ count is a remedial measure that cannot relieve the surgeon of his or her nondelegable duty to remove the sponge in the first instance. Bellina had an independent, nondelegable duty to remove from the patient’s body the foreign substance that he had placed into her.
Current jurisprudence more accurately reflects the modern team approach to surgery, whereby the nurses’ count is a remedial measure that does not discharge the surgeon’s independent duty to ensure that all sponges are removed before an incision is closed.
The lesson in this case illustrates the importance of building redundancy in the delivery of health care to protect patients from harm. The responsibility of accounting for sponges, instruments, and other foreign objects lies with both the surgeon and nurse and, in some instances, the operating room technician. Even though some jurisdictions may free the surgeon of such responsibility, organizations should adopt a higher standard, assigning responsibility to both the nurse and surgeon and, where applicable, the operating room technician.
Patients are highly susceptible to falling, and the consequences of falling are generally more serious with older age groups. Among senior citizens, falls represent the fifth-leading cause of death, and the mortality rate from falls increases significantly with age. For those age 75 years and older, the mortality rate from falls is five times higher than for those age 65 to 74 years, and the rate increases such that persons older than age 80 years have an even greater chance of experiencing a fatal fall.
Standards for the application of both physical and chemical restraints have been evolving over the past decade, and they are becoming more stringent. Because of patient rights issues, injuries, and the improper and indiscreet use of restraints, organizations are attempting to develop restraint-free environments.
Failure to Follow Policy
The plaintiffs, in
Estate of Hendrickson v. Genesis Health Venture, Inc.,
filed an action for negligence, breach of contract, and negligent infliction of emotional distress against Genesis ElderCare Network Services, Inc. (GENS), among others.
Hendrickson suffered a massive stroke while she was a patient at a hospital in the summer of 1996. The stroke left her totally dependent on others for her daily care. During one of her admissions to Salisbury Center, a nursing home, operated by the defendant GENS, Ferguson went into Hendrickson’s room while making rounds and found Hendrickson dead, her head wedged between the mattress and the adjacent bed rail.
A jury found that Hendrickson’s death was caused by negligence. On appeal, GENS argued that the plaintiff failed to show that GENS knew or should have known of the risk of injury to Hendrickson from the side rails. The North Carolina Court of Appeals disagreed, finding that there was evidence tending to show that nursing assistants employed by GENS were aware that Hendrickson, on several occasions before her death on October 30, had slid to the edge of the bed and become caught between the edge of the mattress and the bed rail. Plaintiffs offered evidence showing that GENS had a restraint policy in effect that required a restraint assessment form for any resident for whom the use of restraints was required. The nursing staff was required to document the effectiveness of less restrictive measures. The assessment was required to be reviewed by a restraint alternative team/committee. Evidence was offered showing that no restraint assessment form had been completed for Hendrickson. In addition, her medical records contained no nursing notes documenting the use of less restrictive measures than the bed rails. The defendant argued that the bed rails were required for positioning and safety and were not restraints, so that no restraint assessment was required. Although the evidence was conflicting as to whether the bed rails were used as a restraint or as a safety measure, evidence indicated that the rails should have been considered a restraint in connection with Hendrickson’s care, as per organization policy.
The court of appeals concluded that the plaintiffs offered sufficient evidence to sustain a finding by the jury that defendant GENS was negligent in failing to conform to its own policies with respect to the use of physical restraints and that such negligence was the proximate cause of Hendrickson’s death.
Failure to Raise Bed Rails
The plaintiff in
Polonsky v. Union Hospital
59 suffered a fall and fractured her hip after the administration of a sleeping medication commonly known by the trade name Dalmane. The superior court awarded damages in the amount of the statutory limit of $20,000, and the hospital appealed. The appeals court held that from the Dalmane warning provided by the drug manufacturer and the hospital’s own regulation regarding bedside rails, without additional medical testimony, the jury could draw an inference that the hospital’s nurse failed to exercise due care when she failed to raise the bed rails after administering Dalmane.
Nurse Followed Safe Procedures
The fall of a patient is not always attributable to negligence. The New York Court of Appeals held that the evidence in
Stoker v. Tarentino
60 did not support discipline of a nurse on a charge that a wheelchair resident was improperly left alone in the bathroom. The negligence charge against the petitioner was predicated on a wheelchair resident having been left alone in the bathroom after the petitioner assisted another nurse in moving the resident from the bed to the wheelchair to the bathroom. All the nurses who testified agreed that there was no order, written or verbal, requiring the nurse to remain with the resident while she was in the bathroom. Policies and procedures of the nursing facility and the health department contained no instructions concerning toilet procedures with respect to wheelchair residents. The court held that disciplinary action against the nurse should be annulled and expunged from the petitioner’s personnel file.
Fall from Examination Table
A judgment for the plaintiff was affirmed in
Petry v. Nassau Hospital,
which was an action to recover damages for personal injuries suffered by the plaintiff’s wife. The patient had been placed on a narrow examination table in the emergency department of the defendant hospital and fell from the table. The table had no side rails in place to protect the patient from falling, and the patient had been left unattended by the nurse in charge.
11.6 DUTY TO QUESTION DISCHARGE
A nurse is not only a caregiver, but often takes on the role of a patient advocate. For example, a nurse has a duty to question the discharge of a patient if he or she has reason to believe that such discharge could be injurious to the health of the patient. Jury issues were raised in
Koeniguer v. Eckrich
62 by expert testimony that the nurses had a duty to attempt to delay the patient’s discharge if her condition warranted continued hospitalization. By permissible inferences from the evidence, the delay in treatment that resulted from the premature discharge contributed to the patient’s death. Summary dismissal of this case against the hospital by a trial court was found to have been improper.
11.7 DUTY TO REPORT PHYSICIAN NEGLIGENCE
An organization can be liable for failure of nursing personnel to take appropriate action when a patient’s personal physician is clearly unwilling or unable to cope with a situation that threatens the life or health of the patient. In a California case,
Goff v. Doctors General Hospital,
63 a patient was bleeding seriously after childbirth because the physician failed to suture her properly. The nurses testified that they were aware of the patient’s dangerous condition and that the physician was not present in the hospital. Both nurses knew the patient would die if nothing was done, but neither contacted anyone except the physician. The hospital was liable for the nurses’ negligence in failing to notify their supervisors of the serious condition that caused the patient’s death. Evidence was sufficient to sustain the finding that the nurses who attended the patient and who were aware of the excessive bleeding were negligent and that their negligence was a contributing cause of the patient’s death. The measure of duty of the hospital toward its patients is the exercise of that degree of care used by hospitals generally. The court held that nurses who knew that a woman they were attending was bleeding excessively were negligent in failing to report the circumstances so that prompt and adequate measures could be taken to safeguard her life.
SWOLLEN BEYOND RECOGNITION
NKC Hosps., Inc. v. Anthony, 849 S.W.2d 564 (Ky. Ct. App. 1993)
Mrs. Anthony was in her first pregnancy under the primary care of Dr. Hawkins, her personal physician. Anthony was in good health, 26 years of age, employed, and about 30 weeks along in her pregnancy. On September 5, 1989, Anthony’s husband took her to the emergency department of Norton Hospital. She was experiencing nausea, vomiting, and abdominal pain. Because of her pregnancy, she was referred to the hospital’s obstetrical unit. In the obstetrical unit, Anthony came under the immediate care of Moore, a nurse, who performed an assessment.
Hawkins was called, and she issued several orders, including an IV start, blood work, urinalysis, and an antinausea prescription. Later that night, a second call was made to Hawkins, giving her the test results and informing her that the patient was in extreme pain. Believing that Anthony had a urinary tract infection, antibiotics were ordered along with an order for her discharge from the hospital.
That same night, a third call was made to Hawkins because of the pain Anthony was experiencing, as observed by Moore. Mr. Anthony also talked with Hawkins about his wife’s pain. Moore became concerned about Hawkins’s discharge order. Although aware of Moore’s evaluation, Hawkins prescribed morphine sulfate but was unrelenting in her order of discharge. Love, the resident physician on duty, did not see or examine the patient, although a prescription for morphine was ordered and administered pursuant to the telephoned directions of Hawkins. At approximately 2:00 AM, the morphine was administered to Anthony. She rested comfortably for several hours but awakened in pain again. At 6:00 AM, the patient was discharged in pain.
During trial testimony, Hale, a nursing supervisor, admitted that it was a deviation from the standard of nursing care to discharge a patient in significant pain. Moore, who was always concerned about the patient’s pain, had grave reservations about her discharge. She suggested that Love examine Anthony. She even consulted her supervisor, Nurse Hale.
At approximately 10:00 AM, Anthony was readmitted to the hospital. Upon readmission, Hawkins began personal supervision of her patient. It was determined that Anthony had a serious respiratory problem. The next day, the patient was transferred to the hospital’s intensive care unit.
The following day, the baby was delivered by cesarean section. It was belatedly determined at that time that Anthony’s condition was caused by a perforation of the appendix at the large bowel, a condition not detected by anyone at the hospital during her first admission. Almost 3 weeks later, while still in Norton Hospital, Anthony died of acute adult respiratory distress syndrome, a complication resulting from the delay in the diagnosis and treatment of her appendicitis.
Judgment was brought against the hospital. At trial, Dr. Fields, an expert witness for the estate of Anthony, testified that the hospital deviated from the standard of care. Every patient who presents herself to the labor and delivery area, the emergency department, or any area of the hospital should be seen by a physician before anything is undertaken and certainly before she is allowed to leave the institution. Further, to provide the patient with medication in the form of a prescription without the physician ever seeing the patient was below any standard of care with which Fields was acquainted. An award of more than $2 million was returned, with the apportionment of causation attributable to Hawkins as 65% and to the hospital as 35%. The hospital argued that the trial court erred in failing to grant its motions for directed verdict and for judgment notwithstanding the verdict because of the lack of substantial causation in linking the negligence of the hospital to Anthony’s death.
Was the negligence of the hospital superseded by the negligence of the patient’s primary care physician, and was the award excessive?
The Kentucky Court of Appeals held that negligence of the hospital was not superseded by the negligence of the patient’s primary care physician and that the award for pain and suffering was not excessive.
The hospital’s negligence is based on acts of omission, by failing to have Mrs. Anthony examined by a physician and by discharging her in pain. The hospital should have foreseen the injury to Anthony because its own staff was questioning the judgments of Hawkins while, at the same time, failing to follow through with the standard of care required of it. The defense that the hospital’s nurses were only following a “chain of command” by doing what Hawkins ordered is not persuasive. The nurses were not the agents of Hawkins. All involved had their independent duty to Anthony.
The evidence presented a woman conscious of her last days on earth, swollen beyond recognition, tubes exiting almost every orifice of her body, in severe pain, and who deteriorated to the point where she could not verbally communicate with loved ones. Among the last things she did was write out instructions about the care for her newborn child. The trial court, when confronted with a motion for a new trial on excessive damages, must evaluate the award mirrored against the facts. It is said, if the trial judge does not blush, the award is not excessive. No question, the award was monumental, but so was the injury.
1. Was Dr. Hawkins’s telephone “assessment” of the patient appropriate?
2. How would you apportion negligence among the attending physician, resident, obstetrical nurse, nursing supervisor, and hospital?
3. What are the lessons that should be learned from this case?
4. What educational issues are apparent?
The Court’s Decision
The court concluded there was ample evidence to support the trial judge’s conclusion that the nursing staff breached the standard of care. Testimony indicated that Ard would have had a much better chance of survival if he had been transferred to the intensive care unit. The general damages award was raised from $50,000 to $150,000.
Medical Staff Organization and Physician Liability
© Luis Louro/Shutterstock
It’s Your Gavel…
RIGHT PATIENT, WRONG SURGERY
The plaintiff was diagnosed with a herniated disc at L
. His surgeon performed a laminectomy. During a review of the plaintiff’s postoperative X-rays, the surgeon noted that he had mistakenly removed the disc at L
-L4. The plaintiff testified that after the surgery, his condition progressively worsened.
The plaintiff’s expert testified that removal of the healthy disc caused the space between L3-L4 to collapse and the vertebrae to shift and settle. Even the defendant’s expert witness testified that the removal of the healthy disc would increase the likelihood that the plaintiff would be more susceptible to future injuries.
The trial court directed a verdict against the defendant based on the defendant’s own admission and that of his expert that he was negligent and that his negligence caused at least some injury to the patient. The defendant appealed.
WHAT IS YOUR VERDICT?
The reader, upon completion of this chapter, will be able to:
• Describe medical staff organization and committee structure.
• Describe the credentialing and privileging process.
• Discuss the purpose of physician supervision and monitoring.
• List and discuss common medical errors and how they lead to litigation.
• Explain how the physician–patient relationship can be improved.
This chapter provides an overview of medical ethics, medical staff organization, the credentialing process, and a review of cases focused on the legal risks of physicians. The cases presented highlight those areas in which physicians tend to be most vulnerable to lawsuits.
.1 PRINCIPLES OF MEDICAL ETHICS
The medical profession has long subscribed to a body of ethical guidelines developed primarily for the benefit of the patient. As a member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self.
The following principles adopted by the American Medical Association are not laws, but rather standards of conduct that define the essentials of honorable behavior for the physician.
Code of Medical Ethics
I. A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.
II. A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.
III. A physician shall respect the law and also recognize a responsibility to seek changes in those requirements that are contrary to the best interests of the patient.
IV. A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.
V. A physician shall continue to study, apply, and advance scientific knowledge; maintain a commitment to medical education; make relevant information available to patients, colleagues, and the public; obtain consultation; and use the talents of other health professionals when indicated.
VI. A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.
VII. A physician shall recognize a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health.
VIII. A physician shall, while caring for a patient, regard responsibility to the patient as paramount.
IX. A physician shall support access to medical care for all people.
The following correspondence in the form of a reality check describes one episode of a frustrated patient’s journey of being passed from physician to physician, eventually finding one she thought would help her find the answers to her mysterious disease.
The patient’s hope for answers and possible treatment in this reality check were dashed. The patient began to lose trust in the medical profession. I listened as she explained to me, “I was troubled as I stood looking at the code of medical ethics that hung so prominently in the physician’s waiting room. All the right words were there, only one thing was missing.” I asked her what was missing. She looked at me and emphatically said, “Practice.”
10.2 MEDICAL STAFF ORGANIZATION
The medical staff is formally organized with officers, committees, and bylaws. At regular intervals, the various committees of the medical staff review and analyze their responsibilities, clinical experiences, and opportunities for improvement. The responsibilities of a variety of medical staff committees are described here.
Executive Committee. The executive committee oversees the activities of the medical staff. It is responsible for recommending to the governing body such things as medical staff structure, a process for reviewing credentials and appointing members to the medical staff, a process for delineating clinical privileges, a mechanism for the participation of the medical staff in performance improvement activities, a process for peer review, a mechanism by which medical staff membership may be terminated, and a mechanism for fair hearing procedures. The executive committee reviews and acts on the reports of medical staff departmental chairpersons and designated medical staff committees. Actions requiring approval of the governing body are forwarded to the governing body for approval. Executive committee members generally include the chief of staff, medical staff officers, and department chairs. The chief executive and chief nursing officers are generally nonvoting members of the committee.
My Hopes for Help Crumble
When I went to your office, it was with great hopes that someone was finally going to piece together all of the bizarre symptoms I have been experiencing over the last several months and get to the cause of my pain.
I was quite frankly shocked by how I was treated as a patient—especially one experiencing a health crisis.
A medical student examined me. He wrote my history and current health problems on a small “yellow sticky pad.” You were not in the room when he examined me, and then I saw you for approximately 10 minutes.
You took the business card of my New York doctor and said you were going to call him, and then call me regarding what you thought the next steps should be.
I called you on Friday because my local doctor said that you had not called, and I was told you were on vacation until yesterday. I had asked that you call me. You never did. I called you yesterday again, but you did not answer nor did you return my call. On Monday, I received a letter from a medical student, I assume. Although I empathize with the demands on your time, I have never seen a handwritten letter, which I received, informing me of test results I provided to you prior to my appointment with you. You never mentioned the liver enzyme elevations or my February test from New York. Moreover, no mention was made regarding any plan to help me alleviate immediate problems.
Doctor, I am not a complainer or a person with a low pain tolerance. Since moving here, I’ve had fainting episodes, severe chest pain and pressure, leg and arm pain and stiffness, congestion on the left side when the pain kicks in, and by 3 o’clock I have to go home and lie down because I’m so weak and tired. I cannot continue to exist like this. It is not normal. If you’re too busy and don’t want to take me as a patient, you will not offend me. Frankly, I need attention now to get these things resolved. Testing my cholesterol in a month will not address the problem. I’ve been treated for that for three years.
Please call or write to me so I can get another doctor if I have to.
The physician never responded.
1. Discuss how the caregivers failed in their delivery of care and, more importantly, how the patient’s needs were never fully addressed.
2. How would you address this patient’s care with the hospital’s leadership and governing body?
3. Should conduct of this nature be reported to any particular agency or should the matter just go unchecked?
Bylaws Committee. The functioning of the medical staff is described in its bylaws, rules, and regulations, which must be reviewed and approved by the organization’s governing body. Bylaws must be kept current, and the governing body must approve recommended changes. The bylaws describe the various membership categories of the medical staff (e.g., active, courtesy, consultative, and allied professional staff) as well as the process for obtaining privileges.
Blood and Transfusion Committee. The blood and transfusion committee develops blood usage policies and procedures. It is responsible for monitoring transfusion services and reviewing indications for transfusions, blood ordering practices, each transfusion episode, and transfusion reactions. The committee reports its findings and recommendations to the medical staff executive committee.
Credentials Committee. The credentials committee oversees the application process for medical staff applicants, requests for clinical privileges, and reappointments to the medical staff. The committee makes its recommendations to the medical executive committee.
Infection Control Committee. The infection control committee is generally responsible for the development of policies and procedures for investigating, controlling, and preventing infections.
Medical Records Committee. The medical records committee develops policies and procedures as they pertain to the management of medical records, including release, security, and storage. The committee determines the format of complete medical records and reviews medical records for accuracy, completeness, legibility, and timely completion. Medical records are also reviewed for clinical pertinence. The committee ensures that medical records reflect the condition and progress of the patient, including the results of all tests and therapy given, and makes recommendations for disciplinary action as necessary.
Pharmacy and Therapeutics Committee. The pharmacy and therapeutics committee is generally charged with developing policies and procedures relating to the selection, procurement, distribution, handling, use, and safe administration of drugs, biologicals, and diagnostic testing material. The committee oversees the development and maintenance of a drug formulary. The committee also evaluates and approves protocols for the use of investigational or experimental drugs. The committee oversees the tracking of medication errors and adverse drug reactions; the management, control, and effective and safe use of medications through monitoring and evaluation; and the monitoring of problem-prone, high-risk, and high-volume medications utilizing parameters such as appropriateness, safety, effectiveness, medication errors, food–drug interactions, drug–drug interactions, drug–disease interactions, and adverse drug reactions. The committee also performs other such activities that may be delegated to it by the medical executive committee.
Quality Improvement Council. The quality improvement council functions as a patient care assessment and improvement committee. The council generally consists of representatives from the organization’s administration, governing body, medical staff, and nursing.
Tissue Committee. The tissue committee reviews all surgical procedures. Surgical case reviews address the justification and indications for surgical procedures.
Representation on the tissue committee should include the departments of surgery, anesthesiology, pathology, nursing, risk management, and administration.
Utilization Review Committee. The utilization review committee monitors and evaluates utilization issues such as medical necessity and appropriateness of admission and continued stay, as well as delay in the provision of diagnostic, therapeutic, and supportive services. The utilization review committee ensures that each patient is treated at an appropriate level of care. Objectives of the committee include timely transfer of patients requiring alternate levels of care; promotion of the efficient and effective use of the organization’s resources; adherence to quality utilization standards of third-party payers; maintenance of high-quality, cost-effective care; and identification of opportunities for improvement.
10.3 MEDICAL DIRECTOR
The medical director serves as a liaison between the medical staff and the organization’s governing body and management. The medical director should have clearly written agreements with the organization, including duties, responsibilities, and compensation arrangements. State nursing home codes often provide for the designation of either a full-time or part-time physician to serve as medical director. The responsibilities of a medical director include enforcing the bylaws of the governing body and medical staff and monitoring the quality of medical care in the organization.
The medical director of an organization can be liable for failing to perform his or her duties and responsibilities. When a Texas nursing home was indicted by a grand jury in 1
1 for the deaths of several residents, the medical director was also indicted.3 His plea that he merely signed papers and attended meetings did not absolve him of the responsibility to ensure the adequacy and the appropriateness of medical services in the organization.
10.4 MEDICAL STAFF PRIVILEGES
Medical staff privileges are restricted to those professionals who fulfill the requirements as described in an organization’s medical staff bylaws. Although cognizant of the importance of medical staff membership, the governing body must meet its obligation to maintain standards of good medical practice in dealing with matters of staff appointment, credentialing, and the disciplining of physicians for such things as disruptive behavior, incompetence, psychological problems, criminal actions, and substance abuse.
Appointment to the medical staff and medical staff privileges should be granted only after there has been a thorough investigation of the applicant. The delineation of clinical privileges should be discipline-specific and based on appropriate predetermined criteria that adhere to national standards. The appointment, privileging, and credentialing process are discussed below.
The application should include information regarding the applicant’s medical school; internship; residency program; license to practice medicine; board certification; fellowship; medical society membership; malpractice coverage; unique skills and talents; privileges requested and specialty; availability to provide on-call emergency department coverage where applicable; availability to serve on medical staff and/or organization committees; medical staff appointments and privileges at other healthcare organizations; disciplinary actions against the applicant; unexplained breaks in work history; voluntary and/or involuntary limitations or relinquishment of staff privileges; and office location (geographic requirements should not be unreasonably restrictive; if the applicant does not meet the organization’s geographic requirements for residence and office location, provision should be available in the bylaws for exceptions that might be necessary to attract high-quality consulting staff). Board certification, is not generally acceptable criteria for determining eligibility for medical staff appointment.
The primary function of physician board certification is to provide a platform for physician specialists to demonstrate a mastery of the core competencies required to provide the best possible care in a given medical specialty. The American Board of Physician Specialties (ABPS) governs
specialty boards that allow physicians to prove they possess the skill and experience necessary to practice their chosen specialties.4
Fellowship training and medical society membership are also not normally required for medical staff appointment.
Medical Staff Bylaws
The medical staff bylaws should be approved by the medical executive committee and governing body. All applicants for medical staff privileges should be required to sign a statement attesting to the fact that the medical staff bylaws have been read and understood and that the physician agrees to abide by the bylaws and other policies and procedures that may be adopted from time to time by the organization.
Physical and Mental Status
An applicant’s physical and mental status should be addressed prior to the granting of medical appointments and staff privileges. Credentialed members of the medical staff should undergo a medical evaluation prior to reappointment to the medical staff.
Consent for Release of Information
Consent for release of information from third parties should be obtained from the applicant.
Certificate of Insurance
The applicant should provide evidence of professional liability insurance. The insurance policy should provide minimum levels of insurance coverage, with limits (e.g., $1 million to $3 million) determined by the organization.
A physician’s right to practice medicine is subject to the licensing laws contained in the statutes of the state in which the physician resides. The right to practice medicine is not a vested right, but is a condition of a right subordinate to the police power of the state to protect and preserve public health. Although a state has power to regulate the practice of medicine, for the benefit of the public health and welfare, this power is restricted. Regulations must be reasonably related to the public health and welfare and must not amount to arbitrary or unreasonable interference with the right to practice one’s profession. Health professions commonly requiring licensure include chiropractors, dentists, nurses, nurse practitioners, pharmacists, physicians’ assistants, optometrists, osteopaths, physicians, and podiatrists. A statute mandating that the Medical Board of California disclose to the public information regarding its licensees (Cal. Bus. & Prof. Code, §
3.1) and the statute mandating that the board post on the Internet information pertaining to its licensees (Section
) did not prohibit the board from posting on its website information regarding a licensee’s completion of probation with a listing of the case number of the case from which the probation arose.5 Grounds for the revocation of a license to practice medicine include: a clear demonstration of the lack of good moral character, deliberate falsification of a patient’s medical record (to protect one’s own interests at the expense of the patient), intentional fraudulent advertising, gross incompetence, sexual misconduct, substance abuse, performance of unnecessary medical procedures, billing for services not performed, and disruptive behavior.
National Practitioner Data Bank
Healthcare organizations must query the National Practitioner Data Bank (NPDB) for information on applicants seeking medical staff privileges and every 2 years on the renewal of appointments. The NPDB’s principal purpose is to facilitate a more comprehensive review of professional credentials.
References should be checked thoroughly. Failure to do so can lead to corporate liability for a physician’s negligent acts. Both written and oral references should be obtained from previous organizations with which the applicant has been affiliated. An action was brought against the hospital in Rule v. Lutheran Hospitals & Homes Society of America
for birth injuries sustained during an infant’s breech delivery. The action was based on allegations that the hospital negligently failed to investigate the qualifications of the attending physician before granting him privileges. The jury’s verdict of $6
,000 was supported by evidence that the hospital failed to check with other hospitals where the physician had practiced. The physician’s privileges at one hospital had been limited in that breech deliveries had to be performed under supervision.
Prior to interviewing the applicant, the following questions should be answered:
1. Have all documents been received prior to the interview?
2. Are there any unaccounted-for breaks or gaps in education or employment?
3. Has any disciplinary action or misconduct investigation been initiated or are any pending against the applicant by any licensing body?
4. Has the applicant’s license to practice medicine in any state ever been denied, limited, suspended, or revoked?
5. Have the applicant’s medical staff privileges ever been suspended, diminished, revoked, or refused at any healthcare organization?
6. Has the applicant ever withdrawn an application or resigned from any medical staff to avoid disciplinary action prior to a decision being rendered by an organization regarding application for membership?
7. Has the applicant ever been named as a defendant in a lawsuit?
8. Has the applicant ever been named as a defendant in a criminal proceeding?
9. Is the applicant available for emergency on-call coverage?
10. Does the applicant have back-up and cross-coverage?
. Does the applicant have any special skills or talents?
. Has the applicant reviewed medical staff bylaws, rules, and regulations, and, where applicable, departmental rules and regulations?
. Does the applicant agree to abide by the medical staff bylaws, rules, regulations, and other policies and procedures set by the organization?
. Is the applicant a team player? Can he or she work well with others?
. Has the applicant ever been restricted from participating in any private or government (e.g., Medicare, Medicaid) health insurance program?
. Has the applicant’s malpractice insurance coverage ever been terminated by action of an insurance carrier?
. Has the applicant ever been denied malpractice insurance coverage?
18. Have there been any settlements and/or judgments against the applicant?
. Does the applicant have any physical or mental impairments that could affect his or her ability to practice the privileges requested?
Delineation of Clinical Privileges
The delineation of clinical privileges is the process by which the medical staff determines precisely what procedures a physician is authorized to perform. This decision is based on predetermined criteria as to what credentials are necessary to competently perform the privileges requested, including education and supervised practice to verify the skills necessary to perform the privileges being requested.
Limitations on Privileges Requested
Dr. Warnick, a pediatrician, obtained associate staff privileges at the Natchez Community Hospital in 1997. She later applied for full privileges through the hospital’s credentials committee. Concern was raised about her alleged difficulty with the intubation of children. As a result, action on Warnick’s request for full privileges was deferred. In May of 1998, the credentials committee recommended full privileges with the exception of neonatal resuscitation. After several in-hospital appeals, Warnick filed a lawsuit. The court determined that there was substantial evidence to support the hospital’s suspension of Warnick’s resuscitation privileges and her right to due process was not violated.
Hospitals licensed in Mississippi pursuant to statute are authorized to suspend, deny, revoke, or limit the hospital privileges of any physician practicing or applying to practice therein, if the governing board of such hospital, after consultation with the medical staff, considers such physician to be unqualified because of any of the acts set forth in Miss. Code Ann. §
-93 (1998), provided that the procedures for such actions comply with the hospital and/or medical staff bylaw requirements for due process. In this case, the hospital and medical staff abided by the bylaws and requirements for due process, as evidenced by two hearings afforded to Warnick. She did not complain that she was unable to present all relevant evidence. Her claims were heard in a timely and meaningful manner.7
Practicing Outside Field of Competency
A physician should practice discretion when treating a patient outside his or her field of expertise or competence. The standard of care required in a malpractice case will be that of the specialty in which a physician is treating, whether or not he or she has been credentialed in that specialty.
In a California case, Carrasco v. Bankoff,8 a small boy suffering third-degree burns over 18% of his body was admitted to a hospital. During his initial confinement, there was little done except to occasionally dress and redress the burned area. At the end of a
-day confinement, the patient was suffering hypergranulation of the burned area and muscular-skeletal dysfunction. The surgeon treating him was not a board-certified plastic surgeon and apparently not properly trained in the management of burn cases. At trial, the patient’s medical expert, a plastic surgeon who assumed responsibility for care after the first hospitalization, outlined the accepted medical practice in cases of this nature. The first surgeon acknowledged this accepted practice. The court held that there was substantial evidence to permit a finding of professional negligence because of the defendant surgeon’s failure to perform to the accepted standard of care and that such failure resulted in the patient’s injury.
Governing Body Responsibility
The governing body has the ultimate duty, responsibility, and authority to select the organization’s professional staff and ensure that applicants to the organization’s medical staff are qualified to perform the clinical privileges requested. The duty to select members of the medical staff is legally vested in the governing body as the body charged with managing the organization. In light of the importance of staff appointments, the courts have prohibited an organization from acting unreasonably or capriciously in rejecting physicians for staff appointments or in limiting their privileges.
Misrepresentation of Credentials
There was reliable, probative, and substantial evidence in Graor v. State Medical Board
9 to support the Ohio State Medical Board’s decision to permanently revoke a physician’s license for misrepresenting his credentials by claiming that he was board certified in internal medicine. The evidence submitted supported that, in many instances, the physician falsely indicated that he had American Board of Internal Medicine certification. The board contended that the hearing examiner addressed the physician’s credibility and found many statements to support her conclusion that the physician intended to misrepresent his board status.
An appeal process should be described in the medical staff bylaws to cover issues such as the denial of professional staff privileges, grievances, and disciplinary actions. The governing body should reserve the right to hear any appeals and be the final decision maker within the organization. A physician whose privileges are either suspended or terminated must exhaust all remedies provided in a hospital’s bylaws, rules, and regulations before considering legal action. The physician in Eidelson v. Archer
10 failed to pursue the hospital’s internal appeal procedure before bringing a suit. As a result, the Alaska Supreme Court reversed a superior court’s judgment for the physician in his action for damages.
Each physician’s credentials and departmental evaluations should be reviewed at a minimum of every 2 years. The medical staff must provide effective mechanisms for monitoring and evaluating the quality of patient care and the clinical performance of physicians. For problematic physicians, consideration should be given to privileges with supervision, a reduction in privileges, suspension of privileges with purpose (e.g., suspension pending further training), or termination of privileges.
10.5 COMMON MEDICAL ERRORS
The NPDB 2012 Annual Report shows that between 2003 and 2012, the number of adverse actions reported to the NPDB related to physicians and dentists increased from 6,1
, representing a
percent increase. The trend indicates that a small percentage of physicians are responsible for a large proportion of malpractice dollars paid to injured parties.11
This section provides an overview of some of the more common medical errors as they relate to patient assessments, diagnosis, treatment, and follow-up care. Infections, obstetrics, and psychiatry are discussed later in this chapter to introduce the reader to other common physician risks in the practice of medicine. As with many cases reviewed in the text, there are often multiple headings under which a case could be placed. For example, a poor assessment could lead to the wrong clinical tests, resulting in inappropriate treatment and follow-up care, which can result in major patient injuries or even death. It is important that the reader begin to critically analyze each case and see its application in the overall provision of quality patient care.
It is not enough to perform an assessment and order and get the correct lab test that supports a physician’s order for a potassium infusion, which is started by a nurse. Quality care requires that each caregiver be aware of all the hazards that could lead to patient harm the moment he or she walks into that patient’s room (e.g., is the infusion infiltrating the patient’s tissue?).
The reader should keep in mind when reading this section that “Ethical values and legal principles are usually closely related, but ethical obligations typically exceed legal duties … The fact that a physician charged with allegedly illegal conduct is acquitted or exonerated in civil or criminal proceedings does not necessarily mean that the physician acted ethically.”12
10.6 PATIENT ASSESSMENTS
Patient assessments involve the systematic collection and analysis of patient-specific data that are necessary to determine a patient’s care and treatment plan. A patient’s plan of care is dependent on the quality of those assessments conducted by the practitioners of the various disciplines (e.g., physicians, nurses, dietitians, physical therapists).
The physician’s assessment is based on the patient’s history and physical examination. It must be conducted for elective admissions within
hours of a patient’s admission to the hospital. Emergency patients are, out of necessity, evaluated and treated promptly on arrival to the hospital’s emergency department. The findings of the clinical examination are of vital importance in determining the patient’s plan of care. The assessment is the process by which a doctor investigates the patient’s state of health, looking for signs of trauma and disease. It sets the stage for accurately diagnosing the patient’s medical problems. A cursory and negligent assessment can lead to a misdiagnosis of the patient’s health problems and/or care needs and, consequently, to poor care. To ensure a comprehensive process for assessing patient care needs, the organization should conduct a self-check, which would include:
• There is a written policy for conducting screenings and assessments.
• Second opinions are obtained as necessary; literature is searched; and other resources are used to provide current, timely, and accurate diagnoses and treatment options for each patient.
• Criteria for nutritional screens and assessments have been developed and approved.
• Nutritional screens and assessments are performed.
• Patients on special diets are monitored to ensure that they have the appropriate food tray.
• Functional screens have been developed and implemented.
• Patients are informed of the risks, benefits, and alternatives to anesthesia, surgical procedures, and the administration of blood or blood products.
• Consent forms are executed and placed in the patient’s record.
• Responsibility has been assigned for ensuring that appropriate surgical equipment, supplies, and staffing are available prior to the administration of anesthesia.
• A pertinent and thorough history and physical have been completed and reviewed prior to surgery.
• A process exists by which there is correlation of pathology and diagnostic findings.
• A preanesthesia assessment has been conducted.
• The surgeon has been credentialed to perform the surgical procedure that he or she is about to perform.
• Vital sign, airway, and surgical site assessments are continuously monitored during the procedure.
• A procedure is in place for conducting instrument and sponge counts prior to closing the surgical site.
• Procedures exist for cleaning and storing all equipment following each invasive procedure.
Unsatisfactory History and Physical
Failure to obtain an adequate family history and perform an adequate physical examination violates a standard of care owed to the patient. In Foley v. Bishop Clarkson Memorial Hospital,13 the spouse sued the hospital for the death of his wife. During her pregnancy, the patient was under the care of a private physician. She gave birth in the hospital on August 20, 19
, and died the following day. During July and August, her physician treated her for a sore throat. There was no evidence in the hospital record that the patient had complained about a sore throat while in the hospital. The hospital rules required a history and physical examination to be written promptly (within 24 hours of admission). No history had been taken, although the patient had been examined several times in regard to the progress of her labor. The trial judge directed a verdict in favor of the hospital.
On appeal, the appellate court held that the case should have been submitted to the jury for determination. A jury might reasonably have inferred that if the patient’s condition had been treated properly, the strep throat infection could have been combated successfully and her life saved. It also reasonably might have been inferred that if a history had been taken promptly when she was admitted to the hospital, the sore throat would have been discovered and hospital personnel would have been alerted to watch for possible complications of the nature that later developed. Quite possibly, this attention also would have helped in diagnosing the patient’s condition, especially if it had been apparent that she had been exposed to a strep throat infection. The court held that a hospital must guard not only against known physical and mental conditions of patients, but also against conditions that reasonable care should have uncovered.
In another case, the physician in Moheet v. State Board of Registration for the Healing Arts
14 had adequate notice of the charges against him, in that he was fully aware of the link between his failure to obtain an adequate medical history and the possibility of harm to the patient. He had sufficient notice of the allegation of his failure to obtain an adequate patient history, and his own pleading showed that he knew the charges he would be defending against. The testimony of the expert witnesses, combined with the other evidence in the record, constituted competent and substantial evidence to support the commission’s finding of conduct that might be harmful to a patient. There is ample evidence in the record to support a finding of gross negligence.
There was substantial evidence in Solomon v. Connecticut Medical Examining Board
15 to support disciplinary action against a physician where the record indicated that the physician failed to adequately document patient histories, perform thorough physical examinations, adequately assess the patient’s condition order appropriate laboratory tests, or secure appropriate consultations. The Connecticut Medical Examining Board found that the physician had administered contraindicated medications to patients and did not practice medicine with reasonable skill and safety and that his practice of medicine posed a threat to the health and safety of any person. The board concluded that there was a basis on which to subject the physician’s license to disciplinary action.
Assessment of Unconscious Patient
In Ramberg v. Morgan,16 a police department physician, at the scene of an accident, examined an unconscious man who had been struck by an automobile. The physician concluded that the patient’s insensibility was a result of alcohol intoxication, not the accident, and ordered the police to remove him to jail instead of the hospital. The man, to the physician’s knowledge, remained semiconscious for several days and finally was taken from the cell to the hospital at the insistence of his family. The patient subsequently died, and the autopsy revealed massive skull fractures. The court found that any physician should reasonably anticipate the presence of head injuries when a car strikes a person. Failure to refer an accident victim to another physician or a hospital is actionable neglect of the physician’s duty. Although a physician does not ensure the correctness of the diagnosis or treatment, a patient is entitled to such thorough and careful examination as his or her condition and attending circumstances permit, with such diligence and methods of diagnosis as usually are approved and practiced by healthcare professionals of ordinary or average learning, judgment, and skill in the community or similar localities.
Failure to Obtain a Second Opinion
Dr. Goodwich, an obstetrician and gynecologist (OB/GYN), in Goodwich v. Sinai Hospital,17 had clinical practice patterns that were subject to question by his peers on a wide variety of medical matters. Dr. Goldstein (Chairman of the Department of Obstetrics and Gynecology) met with him on several occasions in 19
regarding those concerns. It was suggested to Goodwich that he obtain second opinions from board-certified OB/GYNs; he orally agreed to do so. This agreement was presented to Goodwich in writing on two occasions in 1988. Goodwich failed to comply with the agreement, and Goldstein held a second meeting with him and his attorney in February 19
. As a result of continued noncompliance, Goldstein asked the Director of Quality, Risk, and Utilization Management to determine how often Goodwich failed to obtain a second opinion. The investigation uncovered several instances of noncompliance. Goldstein then met with Goodwich for a third time. Goodwich agreed that he would obtain a second opinion in high-risk obstetrical cases. Goldstein confirmed the agreement in writing on April
Goldstein left the hospital in June 1992, and Dr. Taylor was appointed acting Chief of Obstetrics and Gynecology. He asked for a recheck of Goodwich’s compliance with the second-opinion agreement. By January, the hospital appointed Dr. Currie as the Chief of Obstetrics and Gynecology. Because of Goodwich’s continuing failure to obtain second opinions, Currie informed Goodwich in writing that pursuant to Article IV, Sec. 7C of the bylaws, rules, and regulations of the hospital’s medical staff, his privileges were temporarily abridged. The letter also advised Goodwich that the medical ethics committee (MEC) would consider a permanent abridgment of his privileges. The MEC met and abridged Goodwich’s privileges for 3 months. The abridgement of Goodwich’s privileges was reported to the Maryland State Board of Physician Quality Assurance and the NPDB.
Goodwich appealed the MEC decision to two different physician panels and the hospital’s governing board. Both physician panels and the governing board affirmed the MEC’s decision to abridge Goodwich’s privileges. Goodwich then sued the hospital for breach of contract, intentional interference with contractual relations, and tortious interference with prospective economic benefit after restrictions were placed on his practice privileges at the hospital. The circuit court entered summary judgment for the hospital on the grounds of statutory immunity. Goodwich appealed, and the court of special appeals held that the hospital acted reasonably, as required for immunity under the federal Health Care Quality Improvement Act of 19
. The record was replete with documentation of questionable patient management and continual failure to comply with second-opinion agreements.
Assessments Sometimes Require Referral to a Specialist
A physician has a duty to refer his or her patient whom he or she knows or should know needs referral to a physician familiar with and clinically capable of treating the patient’s ailments. To recover damages, the plaintiff must show that the physician deviated from the standard of care and that the failure to refer resulted in injury.
The California Court of Appeals found that expert testimony is not necessary where good medical practice would require a general physician to suggest a specialist’s consultation.18 The court ruled that because specialists were called in after the patient’s condition grew worse, it is reasonable to assume that they could have been called in sooner. The jury was instructed by the court that a general practitioner has a duty to suggest calling in a specialist if a reasonably prudent general practitioner would do so under similar circumstances.
A physician is in a position of trust, and it is his or her duty to act in good faith. If a preferred treatment in a given situation is outside a physician’s field of expertise, it is his or her duty to advise the patient. Failure to do so could constitute a breach of duty. Today, with the rapid methods of transportation and easy means of communication, the duty of a physician is not fulfilled merely by using the means at hand in a particular area of practice.
A directed verdict for the defendants in Vito v. North Medical Family Physicians, P.C.,19 following the plaintiff’s proof, was found to be in error in an action alleging that the defendants were negligent in various aspects of their treatment of the plaintiff’s lower back injury. The plaintiff established through expert testimony that the defendant physician failed to refer him to a specialist from 1996 to 2000 and that such failure was a departure from good medical practice and that the longer a herniation existed, the worse the prognosis. There is a rational process by which the jury could have found that Dr. Bonavita was negligent in failing to refer the plaintiff to a specialist to determine the cause of his pain. The physician allegedly failed to keep proper business records and continued to prescribe OxyContin to the plaintiff, and this negligence caused the plaintiff’s damages. The court denied the defendants’ motion for a directed verdict, reinstated the complaint, and granted a new trial before a different justice.
Aggravation of Patient’s Condition
Aggravation of a preexisting condition through negligence may cause a physician to be liable for malpractice. If the original injury is aggravated, liability will be imposed only for the aggravation, rather than for both the original injury and its aggravation. In Nguyen v. County of Los Angeles,20 an 8-month-old girl was taken to the hospital for tests on her hip. She had been injected with air for a hip study and suffered respiratory arrest. She later went into cardiac arrest and was resuscitated, but she suffered brain damage that was aggravated by further poor treatment. The Los Angeles Superior Court jury found evidence of medical malpractice, ordering payments for past and future pain and suffering, as well as medical and total care costs that projected to the child’s normal life expectancy.
The plaintiff in Favalora v. Aetna Casualty & Surety Co.
sued the hospital and the radiologist for injuries the patient sustained when she fell while undergoing an X-ray examination. The morning after her admission to the hospital, the patient was taken from her room in a wheelchair to the radiology department. When preparations for the GI series were complete, two technicians brought the patient to the X-ray room. She then waited for the arrival of the radiologist. When he arrived, the patient was instructed to walk to the X-ray table and stand on the footboard. The technician instructed her to drink a glass of barium. A second cup of barium was handed to her by the technician who then took the exposed film to a nearby pass box leading to the adjacent darkroom, obtained a new film, and repeated the X-ray process. While the technician was depositing the second set of exposed film in the pass box, the patient suddenly fainted and fell to the floor. The technician heard a noise, immediately turned on the lights, and found the patient lying on the floor. The patient was placed on the X-ray table, and X-rays were taken that revealed a fracture of the neck and of the right femur. As a result, a preexisting vascular condition was aggravated, causing a pulmonary embolism, which, in turn, necessitated additional surgery.
The failure of the radiologist to secure the patient’s medical history before the X-ray examination was considered negligence, constituting the proximate cause of the patient’s injuries. Although a defendant is generally required to compensate a patient for the amount of aggravation caused, it is often difficult to determine what monetary damages should be awarded.
Medical diagnosis refers to the process of identifying a possible disease or disease process, thus providing the physician with treatment options. Screens; assessments; reassessments; and the results of medical diagnostic testing such as electroencephalography (EEG), electrocardiography (ECG), imaging, and laboratory findings are some of the tools of medicine that assists providers (e.g., physicians, osteopaths, dentists, podiatrists, nurse practitioners, physician’s assistants) in diagnosing the possible causes of a patient’s symptoms and medical problems, from which a treatment plan is developed. The cases presented here describe some of the lawsuits that have occurred due to misdiagnoses and failure to properly treat the patient based on the results of diagnostic testing.
Failure to Order Diagnostic Tests
A plaintiff who claims that a physician failed to order proper diagnostic tests must show the following:
1. It is standard practice to use a certain diagnostic test under the circumstances of the case.
2. The physician failed to use the test and therefore failed to diagnose the patient’s illness.
3. The patient suffered injury as a result.
Ophthalmologist Fails to Order Tests
In Gates v. Jensen,
a lawsuit was brought against Dr. Hargiss, an ophthalmologist, and others for failure to disclose to Mrs. Gates that her test results for glaucoma were borderline and that her risk of glaucoma was increased considerably by her high blood pressure and myopia. Hargiss failed to perform a field vision test and to dilate and examine the eye. He wrote off the patient’s problem of difficulty in focusing and gaps in vision as being related to difficulties with her contact lenses. Gates visited the clinic 12 times during the following 2 years with complaints of blurriness, gaps in her vision, and loss of visual acuity. Gates eventually was diagnosed with glaucoma. By the time Gates was properly treated, her vision had deteriorated from almost 20/20 to 20/200. The court held that a duty of disclosure to a patient arises whenever a physician becomes aware of an abnormality that may indicate risk or danger. The facts that must be disclosed are those facts the physician knows, or should know, that a patient needs to be aware of to make an informed decision on the course of future medical care.
Once a physician concludes that a particular test is indicated, it should be performed and evaluated as soon as practicable. Delay may constitute negligence. The law imposes on a physician the same degree of responsibility in making a diagnosis as it does in prescribing and administering treatment.
Failure to Order Lab Tests
Failure to order diagnostic tests resulted in the misdiagnosis of appendicitis in Steeves v. United States.23 In this case, physicians failed to order the appropriate diagnostic tests for a child who was referred to a Navy hospital with a diagnosis of possible appendicitis. Judgment in this case was entered against the United States, on behalf of the U.S. Navy, for medical expenses and for pain and suffering. The patient was given a test that indicated a high white blood cell count. A consultation sheet was given to the mother, indicating the possible diagnosis. The physician who examined the patient at the Navy hospital performed no tests, failed to diagnose the patient’s condition, and sent him home at 5:02 PM, some
minutes after his arrival on July 21. The patient was returned to the emergency department on July 22, at about 2:
AM, and was once again sent home by an intern who diagnosed the patient’s condition as gastroenteritis. No diagnostic tests were ordered. The patient was returned to the Navy hospital on July 23, at which time diagnostic tests were performed. The patient was subsequently operated on and found to have a ruptured appendix. Holding the Navy hospital liable for the negligence of the physicians who acted as its agents, the court pointed out that a wrong diagnosis will not in and of itself support a verdict of liability in a lawsuit. However, a physician must use ordinary care in making a diagnosis. Only where a patient is examined adequately is there no liability for an erroneous diagnosis. In this instance, the physicians’ failure to perform further laboratory tests the first two times the child was brought to the emergency department was found to be a breach of good medical practice.
Efficacy of Test Questioned
A medical malpractice action was brought against Mambu in Sacks v. Mambu
24 for failure to make a timely diagnosis of Sacks’s colon cancer. It was alleged that Mambu was negligent in that he failed to properly screen Sacks for fecal occult blood to determine whether there was blood in the colon. Because of complaints of fatigue by the patient, Mambu ordered blood tests that revealed a normal hemoglobin, the results of which suggested that Sacks had not been losing blood. However, by late July 19
, Sacks experienced symptoms of jaundice. Mambu ordered an ultrasound test, and Sacks was subsequently diagnosed with a tumor of the liver. He was admitted to the hospital and diagnosed with having colon cancer. By the time the cancer was detected, it had invaded the wall of the bowel and had metastasized to the liver. Sacks died in March 19
. The trial court entered judgment on a jury verdict for Mambu, and the plaintiff appealed.
The Pennsylvania Superior Court upheld the decision of the trial court. The jury determined that the physician’s failure to administer the test had not increased the risk of harm by allowing the cancer to metastasize to the liver before discovery and, therefore, was not a substantial factor in causing the patient’s death. Although the presence of blood in the stool may be suggestive of polyps, cancer, and a variety of other diseases, not all polyps and cancers bleed. Physicians are therefore in disagreement as to the efficacy of the test.
In another case, at the age of five the plaintiff began to complain about chest pains and trouble breathing. The symptoms reported and the initial testing suggested that the plaintiff either had asthma or cystic fibrosis. Without further testing, the plaintiff’s physician reached a diagnosis of cystic fibrosis and ordered treatment based on that diagnosis. Treatment included daily prescription medication and over 3,000 hours of painful percussion and vibration chest therapy. During percussion and vibration therapy a machine was used to palpitate the chest of the plaintiff in order to break up any secretions in the lungs and clear his airways for improved breathing. In addition to the treatment, the diagnosis took a psychological toll on the patient. The patient was told that he would never be able to have children, his life expectancy was approximately 30 years, and he would eventually have to undergo lung transplant surgery. When the plaintiff entered his preteen years his parents began to question the diagnosis and educated themselves on the disease. After multiple times reaching out to the physician with no response, the parents decided to get a second opinion from a consulting physician. The consulting physician ordered a new test specifically to diagnose cystic fibrosis. The new test came back negative. In the opinion of the consulting physician the plaintiff was never appropriately tested and did not have cystic fibrosis. In this case the jury found in favor of the plaintiff, and awarded him $2,000,000, which was the cap on medical malpractice damages at the time in Virginia.25
Failure to Promptly Review Test Results
Can a physician’s failure to promptly review test results be the proximate cause of a patient’s injuries? The answer is yes. In Smith v. U.S. Department of Veterans Affairs,26 the plaintiff, Smith, was first diagnosed as having schizophrenia in 19
. He had been admitted to the Veterans Affairs (VA) hospital psychiatric ward 15 times since 1972. His admissions grew longer and more frequent as time passed. On the occasion of his March 17, 1990, admission, he had been drinking in a bar, got into a fight, and was eventually taken to the VA hospital. Dr. Rizk was assigned as Smith’s attending physician. Smith developed an acute problem with his respiration and level of consciousness. It was determined that his psychiatric medications were responsible for his condition. Some medications were discontinued, and others were reduced. An improvement in his condition was noted.
By March 23, Smith began to complain of pain in his shoulders and neck. He attributed the pain to more than 20 years of service as a letter carrier and to osteoarthritis. His medical record indicated that he had similar complaints in the past. A rheumatology consultation was requested and carried out on March
. The rheumatology resident conducted an examination and noted that Smith reported bilateral shoulder pain increasing with activity as an ongoing problem since 19
. Various tests were ordered, including an erythrocyte sedimentation rate (ESR).
Smith was incontinent and complained of shoulder pain. By the afternoon, he was out of restraints, walked to the shower, and bathed himself. On returning to his room, he claimed that he could not get into bed. He was given a pillow and slept on the floor. By the morning of April 4, Smith was lying on the floor in urine and complaining of numbness. His failure to move was attributed to his psychosis. By evening, it was noted that Smith could not lift himself and would not use his hands.
On April 5, a medical student noted that Smith was having difficulty breathing and called for a pulmonary consultation. By evening, Smith was either unwilling or unable to grasp a nurse’s hand and continued to complain that his legs would not hold him up.
On the morning of April 6, Smith was complaining that his neck and back hurt and that he had no feeling in his legs and feet. Later that day, a medical student noted that the results of Smith’s ESR was 110 (more than twice the normal rate for a man his age). His white blood count was 18.1, also well above the normal rate. A staff member noted on the medical record that Smith had been unable to move his extremities for approximately 5 days. A psychiatric resident noted that Smith had been incontinent for 3 days and had a fever of 101.1°F.
On the morning of April 7, Smith was taken to University Hospital for magnetic resonance imaging of his neck. Imaging revealed a mass subsequently identified as a spinal epidural abscess. By the time it was excised, it had been pressing on his spinal cord too long for any spinal function to remain below vertebrae 4 and 5.
The plaintiff brought suit alleging that the physicians’ failure to promptly review his test results was the proximate cause of his paralysis. Following a bench trial, the U.S. District Court agreed, holding that the negligent failure of physicians to promptly review laboratory test results was the proximate cause of the plaintiff’s quadriplegia.
Of primary importance was the plaintiff’s ESR of 110; the test results were available on the patient care unit by April 2 but were not seen, or at least not noted in the record, until April 6. An elevated ESR generally accounts for one of three problems: infection, cancer, or a connective tissue disorder. Most experts agreed that, at the very least, a repeat ESR should have been ordered. The VA’s care of the plaintiff fell below the reasonable standard of care in that no one read the laboratory results until April 6. The fact that the tests were ordered mandates the immediate review of the results. Although it cannot be known with certainty what would have occurred had the ESR been read and acted upon on April 2, it is certain that the plaintiff had a chance to fully recover from his infection. By April 6, that chance was gone.
In the absence of notes from Rizk in the plaintiff’s chart, it is impossible to know whether Rizk was aware of the plaintiff’s symptoms. However, it appears that the absence of notes by Rizk indicated that Rizk’s care of the plaintiff was negligent, and the failure to review the lab results constituted negligence under the relevant standard of care. That led to the failure to make an early diagnosis of the plaintiff’s epidural abscess and was the proximate cause of the patient’s eventual paralysis. It was foreseeable that ignoring a high ESR could lead to serious injury.
A mechanism should be in place to expeditiously notify the patient’s physician of abnormal test results.
Computer systems help ensure physicians are notified of critical lab data so that appropriate care decisions can be implemented.
A physician can be liable for reducing a patient’s chances for survival. The timely diagnosis of a patient’s condition is as important as the need to accurately diagnose a patient’s injury or disease. Failure to do so can constitute malpractice if a patient suffers injury as a result of such failure.
Powell v. Margileth,
4 S.E.2d 4
On January 9, 1992, Dr. Massey, a specialist in otolaryngology, measured a node in Mr. Powell’s neck as 4 cm by 3 cm and ordered a CT scan. The CT scan conducted on January 11, 1992, indicated that the size of the left cervical mass was a result of an enlarged internal jugular node, which most likely was an abscess. On January 14, 1992, Massey aspirated fluid from the enlarged node. Although he discussed the CT scan with Powell and ordered cultures, he did not suggest a need for an examination to rule out cancer. Because Powell told Massey that he had experienced some exposure to cats, Massey referred Powell to Dr. Margileth, an infectious disease specialist experienced in the diagnosis and treatment of cat scratch disease. On January
, 1992, Margileth performed tests for tuberculosis and cat scratch disease and measured the swelling in the left anterior-superior neck. He advised Powell that he had cat scratch disease and prescribed antibiotics. The results of the CT scan had been furnished to Margileth.
On February 18, 1992, Massey palpitated the nodule in Powell’s neck, which measured 4 cm × 3 cm × 2.8 cm. Massey performed another examination on April 7, 1992, during the course of which he suggested the possibility of cancer.
In June 1992, Powell discovered a second lump in his neck and, in July, went for help to the VA Medical Center Hospital. A needle aspiration of the two lumps resulted in the diagnosis of cancer, representing a progression from stage III in January 1992 when the CT scan was conducted, to stage IV in July 1992. Powell underwent radiation therapy, surgery, and other treatment but died of cancer 3 years later at the age of
The trial court held that there was not sufficient evidence that would allow a jury of reasonable persons to conclude that the defendant’s breach of the standard of care (1) proximately caused Powell’s injuries; (2) adversely altered the required method of treatment; or (3) adversely affected Powell’s lifespan.
Did the trial court err in granting the defendant’s motion to strike the plaintiff’s evidence?
The appeals court ruled that there was adequate evidence that would allow a jury of reasonable persons to conclude that the defendant’s breach of the standard of care proximately caused the decedent’s injuries. The case was remanded for a new trial.
Dr. Holder, one of the plaintiff’s expert witnesses, testified that the defendant’s misdiagnosis of cat scratch disease caused his patient delay in diagnosis and treatment of his cancer from January until July and that if Powell had been informed of the possibility of cancer in January and options were offered in terms of biopsy for fine-needle aspirations, then Powell would have had a diagnosis of cancer probably in the first week of February. When asked whether the delay in diagnosis and treatment was a direct and proximate cause of the injuries to Powell, Holder answered, “Yes, it was.”
Dr. Ali, who had treated Powell, said he would have had approximately a
% chance of surviving 5 years compared with the 15% to 20% chance he had in July 1992. Dr. Tercilla, a professor at the Medical College of Virginia, testified that, in his opinion, if Powell had been treated in January as opposed to July, he would have had a higher likelihood of being in control of this disease than he had when he presented at the VA hospital. Dr. Kipreos, a pathologist at the VA center, stated that in her opinion, if Margileth had requested a fine-needle aspiration in January 1992, rather than misdiagnosing Powell with cat scratch disease, Powell’s cancer would have been diagnosed at that time.
1. Discuss how the outcome in this case might have been different if Massey had referred his patient to, for example, a family practitioner.
2. Discuss the role of expert testimony in this case.
Radiologists Fail to Make a Timely Diagnosis
A medical malpractice action was brought against a university hospital through its interventional radiologists and other medical employees who failed to timely diagnose and treat the patient’s internal bleeding, which is alleged to have occurred during the performance of an angioplasty that resulted in a hematoma around the patient’s spinal cord, causing paralysis and subsequent loss of use of his limbs. The trial court was found to have erred in directing a verdict against the plaintiff where excluded expert testimony was sufficient to establish evidence of a national standard of care and breach of that standard. The expert had 40 years of experience as a board-certified general surgeon.27
Failure to Monitor Patient
A medical malpractice action was brought against two obstetricians, a pediatrician, and the hospital in Ledogar v. Giordano
because of a newborn infant’s prenatal and postnatal hypoxia, which allegedly caused brain damage resulting in autism. The record contained sufficient proof of causation to support a verdict in favor of the plaintiff when an expert obstetrician testified that both obstetricians were negligent in failing to perform a cesarean section at an earlier time, that the hospital staff departed from proper medical standards of care by not monitoring the fetal heartbeat at least every 15 minutes, and that, with a reasonable degree of medical certainty, it was probable that the fetus suffered hypoxia during labor.
Misdiagnosis in general, and especially misdiagnosis related to medical imaging, represents a significant segment of malpractice litigation. Malpractice lawsuits generally involve allegations of misdiagnosis and can often be the result of the failure to order appropriate imaging tests, misinterpretation of an imaging study, failure to consult with a radiologist, failure to review imaging studies, delay in relaying test results, and failure to relay imaging results. Although the following cases describe many of these issues, they are not exhaustive of the problems that can arise in imaging-related lawsuits.
Failure to Order Appropriate Imaging Studies
The failure to order a proper set of X-rays is as legally risky as the failure to order X-rays. In Betenbaugh v. Princeton Hospital,29 the plaintiff had been taken to the hospital because she injured the lower part of her back. One of the defendant physicians directed that an X-ray be taken of her sacrum. No evidence of a fracture was found. When the patient’s pain did not subside, the family physician was consulted. He found that the films taken at the hospital did not include the entire lower portion of the spine and sent her to a radiologist for further study. On the basis of additional X-rays, a diagnosis of a fracture was made, and the patient was advised to wear a lumbosacral support. Two months later, the fracture was healed. The radiologist who had taken X-ray films on the second occasion testified that it was customary to take both an anterior-posterior and a lateral view when making an X-ray examination of the sacrum. In his opinion, the failure at the hospital to include the lower area of the sacrum was a failure to meet the standard required. The family physician testified that if the patient’s fracture had been diagnosed at the hospital, then appropriate treatment could have been instituted earlier and thus the patient would have suffered less pain and recovery time would have been reduced. The evidence was sufficient to support findings that the physicians and the hospital were negligent by not having taken adequate X-rays and that such negligence was the proximate cause of the patient’s additional pain and delay in recovery.
Image Misinterpretation Leads to Death
The deceased, Jane Fahr, in Setterington v. Pontiac General Hospital,30 was concerned about a lump in her thigh. She had a computed tomography (CT) scan taken at Pontiac General Hospital in August 19
. The radiologist, Dr. Mittner, did not mention that the lump could be cancerous. In reliance on the radiologist’s report, Dr. Sanford, the plaintiff’s treating physician, regarded the condition as a hematoma and believed that a biopsy was not warranted. In late January 1988, Fahr returned to Pontiac General Hospital for another CT scan because the lump seemed to be enlarging. The radiologist, Dr. Khalid, did not include the possibility of a malignant tumor in his report. As a result, Sanford continued to believe that Fahr had a hematoma. In early September 1988, Fahr returned to Sanford, who had another CT scan performed. Dr. Kayne, the radiologist, found an enlarged hematoma. In a follow-up discussion with Sanford, Kayne assured Sanford that the lump did not appear to be dangerous or invasive. As a result, Sanford concluded that Fahr had a hematoma with a leaking blood vessel. In October 1988, the tumor was biopsied and the cancer diagnosed. By December 1988, chest scans revealed metastasis. Fahr died on July 6, 1990, at the age of 32. Setterington, Fahr’s personal representative, brought a malpractice action against Sanford and Pontiac General Hospital, alleging that they failed to timely diagnose and treat Fahr.
The jury found that the radiologists were agents of defendant Pontiac General Hospital and breached the standard of care. The jury also concluded that the breach was a proximate cause of Fahr’s death. The jury returned a verdict for the plaintiff in the amount of just over $2
,000. The trial court denied the plaintiff’s motion for a new trial as to damages, as well as the defendant’s motion for a new trial.
The court found that the evidence as to the malpractice of Khalid and Kayne supported the jury’s finding that they were professionally negligent. Kayne failed to diagnose the cancer in September 1988. With a proper diagnosis, there could have been a full month or more of treatment before metastasis was visible in December. As to Khalid, whose malpractice was 7 months earlier, the conclusion is even stronger.
The hospital provided the plaintiff with the radiologists. The evidence supports the jury’s finding that an agency relationship existed between the radiologists and the hospital. Fahr did not have a patient–physician relationship with the radiologists independent of the hospital setting. Rather, the radiologists just happened to be on duty when Fahr arrived at the hospital. Moreover, the evidence showed that the radiology department is held out as part of the hospital, leading patients to understand that the services are being rendered by the hospital.
Failure to Consult with Radiologist
The internist in Lanzet v. Greenberg
failed to consult with the radiologist after his conclusion that the patient suffered from congestive heart failure. This factor most likely contributed to the death of the patient while on the operating table.
Failure to Read Images
The patient in Tams v. Lotz
32 had to undergo a second surgical procedure to remove a laparotomy pad that had been left in the patient during a previous surgical procedure. The trial court was found to have properly directed a verdict with respect to the patient’s assertion that the surgeon who performed the first operation failed to read a postoperative X-ray report, which allegedly would have put him on notice both that the pad was present and that there was a need for emergency surgery to remove the pad, therefore averting the need to remove a portion of the patient’s intestine.
Delay in Conveying Imaging Results
On April 20, Mr. Carrasco
was taken to the Tri City Community Hospital (Tri City) emergency department by ambulance, complaining of back pain. He was admitted for observation and then released on April 21. On April 22, Carrasco returned to Tri City complaining of continued back pain and the inability to stand. A chest X-ray taken on April 22 revealed a significantly widened mediastinum and an increase in the size of the cardiac silhouette. The radiologist on April 24 reported that the X-ray revealed that in the setting of back pain, an aortic dissection should be considered.
Carrasco’s condition deteriorated on April 24 and he was air lifted to Methodist Hospital in San Antonio for care. A CT scan was taken which revealed an aneurysm of the thoracic aorta and Carrasco underwent emergency surgery. The following day, Carrasco suffered a pericardial effusion, had emergency surgery, coded, and died.
Tri City and the emergency department physician were sued. Tri City filed a motion for summary judgment, asserting that the plaintiffs failed to show it breached the standard of care owed to the patient. The trial court granted summary judgment on this ground.
Because Carrasco’s condition did not deteriorate until April 24, an inference could be made that the rupture occurred sometime on April 24. The Texas Court of Appeals found that the evidence presented was sufficient to reverse the trial court’s judgment and remand the case for trial.
Failure to Communicate Imaging Results
The court of appeals in Washington Healthcare Corp. v. Barrow
34 held that evidence was sufficient to sustain a finding that the hospital was negligent in failing to provide a radiology report demonstrating pathology on patient Barrow’s lung in a timely manner. An X-ray of the patient taken on April 4, 19
, disclosed a small nodular density in her right lung. Within a year, the cancerous nodule had grown to the size of a softball.
The most significant testimony at trial was that of Theresa James, a medical student who worked for Dr. Oweiss, the defendant, until April 23, 1982. James testified that her job entailed combing through Oweiss’s mail and locating abnormal X-ray reports, which she then would bring to his attention. James claimed that she received no such report while working for the physician, thus accounting for 19 days after the X-ray was taken. James stated that the X-ray reports were usually received within 4 or 5 days after being taken. Dr. Odenwald, who dictated the patient’s report on April 4, 1982, gave testimony to corroborate her testimony. Odenwald, of Groover, Christie and Merritt, PC (GCM), who operated the radiology department at the Washington Hospital Center (WHC), stated that the X-ray reports usually were typed and mailed the same day that they were dictated. The jury could have determined that if the report did not reach Oweiss by April 23, 1982, then it did not reach him by May 3, 1982. The patient’s record eventually was found; however, it was not in the patient’s regular folder. Therefore, one could infer that the record was negligently filed.
Questions also arise as to why Oweiss did nothing to follow up on the matter in ensuing months. Oweiss testified that he did receive the report by May 3, 1982, and that he informed Mrs. Barrow of its contents. Barrow stated that although her folder was on the physician’s desk at the time of her visit, he did not relay to her any information regarding an abnormal X-ray. Oweiss, however, was severely impeached at trial, and the jury chose not to believe him. Considering the entire record, there was reasonable probability that WHC was negligent and that Oweiss had not received the report. The plaintiff settled with Oweiss, the patient’s personal physician, in the amount of $200,000 during pendency in the district court, and the action against him was dismissed with prejudice. The record did not support WHC’s request of indemnification from Oweiss. The trial court directed a verdict in favor of GCM, leaving WHC as the sole defendant. The court of appeals remanded WHC’s cross claim for indemnification from GCM for further findings of fact and conclusions by the trial court.
Misdiagnosis is the most frequently cited injury event in malpractice suits against physicians. Medicine is not an exact science and linking a patient’s symptoms to a specific ailment is complicated at best. Sometimes things go wrong despite all the advances of modern medicine. Although diagnosis is a medical art and not an exact science, early detection can be critical to a patient’s recovery. Misdiagnosis may involve the diagnosis and treatment of a disease different from that which the patient actually suffers or the diagnosis and treatment of a disease that the patient does not have. Misdiagnosis in and of itself will not necessarily impose liability on a physician, unless deviation from the accepted standard of care and injury can be established. The reader here is presented with a variety of cases that illustrate how things can go wrong due to poor judgment and negligent acts that result in patient injuries.
When Your Doctor Doesn’t Know
Patients who go for years without a diagnosis often are “medical disasters,” says William Gahl, M.D., Ph.D., director of the NIH’s Undiagnosed Diseases Program, which was launched in May 2008 to study some of the most difficult-to-diagnose medical cases. “They may be given diagnoses based on spurious test results that lead to treatments that are inappropriate or even harmful,” he says. “And living for years without a diagnosis can accrue all sorts of complications.”
—Mary A. Fisher, AARP, July/August 2011
Mitral Valve Malfunction
In Lauderdale v. United States,
the federal government was held liable under the Federal Tort Claims Act for the death of a patient whose mitral valve malfunction was misdiagnosed at a military medical clinic. Under applicable Alabama law, the physician failed to conduct the necessary tests to determine the cause of a suspected heart problem. The physician never indicated to the patient that the problem was severe, that the treatment with digoxin was tentative, and that his well-being mandated that he return in a week. The patient subsequently died. He was found not to have been contributorily negligent by failing to return to the clinic. The patient had not been told sufficiently of the urgency of a return visit. This failure was considered the proximate cause of the patient’s death because his illness might have been treated successfully.
FAILURE TO FORM A DIFFERENTIAL DIAGNOSIS
Corley v. State Department of Health & Hospitals,
9 So. 2d 926 (La. App. 1999)
Corley began experiencing low back pain on February 11, 1988. He sought medical treatment from Dr. Gremillion. Corley complained that he had been experiencing low back pain and abdominal discomfort for approximately 4 months. At Corley’s request, Gremillion ordered X-rays of the lower spine, chest, kidneys, and gallbladder, as well as an upper gastrointestinal series. Gremillion, feeling that a specialist should see Corley, then gave him a written referral to a medical center for an orthopedic evaluation.
On March 2, 1988, Corley went to the medical center’s emergency department with his wife. The Corleys presented admitting personnel with Corley’s records from Gremillion, including X-rays and other test reports. Dr. Fuller, an emergency department physician, took a history from Corley and reviewed Gremillion’s notes and the X-ray reports. He also conducted a routine physical examination and had X-rays made of Corley’s lower back. Fuller’s impression was that Corley was suffering from low back pain. Fuller continued Corley on the medication prescribed by Gremillion and made an appointment for him with the orthopedic clinic on March 16, 1988. On that date, a fourth-year resident, Dr. Bridges, saw Corley in the orthopedic clinic. Bridges conducted a physical exam, which was normal, and started Corley on a conservative course of treatment for low back pain.
Dr. Mehta next saw Corley on April 20, 1988. Mehta’s notes reflect that his physical exam of Corley was normal but that he felt that Corley had a posture problem and referred him to physical therapy for correction of his posture. The notes do not reflect whether Mehta reviewed any of Corley’s previous medical records, X-rays, or reports.
On September 14, 1988, Corley was seen by a surgical resident, Dr. White, who, during the course of the examination, ordered a CT scan of Corley’s lower back. Dr. Ellis, a radiologist at the medical center, interpreted the CT scan as showing arthritis consistent with fibrosis or spinal stenosis and possible edema of the right L5 nerve root, which, according to White, may or may not have been the cause of Corley’s back pain. White did not review any of the previous medical records, X-rays, or reports. Corley’s last visit to the medical center was September 21, 1988. On that date, White reviewed the results of the CT scan with Corley, continued him on an anti-inflammatory drug, and encouraged him to continue his back exercises.
On October 26, 1988, Corley, plagued by constant back pain and beginning to experience difficulty breathing, consulted Dr. Maxwell, a chiropractor, who did a full spinal X-ray that revealed a markedly diminished right lung area. Maxwell sent Corley to his father, also a chiropractor, who confirmed that there was a potential problem with Corley’s right lung and recommended that he see a pulmonary specialist.
On October 31, 1988, Corley presented to Gremillion complaining of chest congestion and shortness of breath. Gremillion diagnosed him with bronchitis and implemented treatment. Corley returned to Gremillion on November 14, 1988, with complaints of shortness of breath and marked weight loss. Subsequent diagnostic testing confirmed the presence of a very large mass (cancer) in Corley’s right chest. Prior to his death on January 23, 1990, Corley received radiation and chemotherapy treatment.
Corley’s surviving spouse and son instituted a malpractice action seeking wrongful death and survival damages. The trial court rendered judgment in favor of the plaintiffs and against the medical center in the amount of $400,000. The defendants, the state, and the medical center appealed.
The primary issue on appeal is whether the trial court committed error in finding that the physicians at the medical center deviated from the applicable standard of care by failing to properly diagnose Corley’s condition, a large cancerous mass in his mediastinum, during the course of their treatment of his low back pain.
The physicians at the medical center fell below the standard of care when they failed to properly diagnose Corley’s condition.
The evidence was in Gremillion’s X-rays and medical report when Corley first arrived at the medical center. When Corley did not respond to conservative treatment, there had to be another explanation for his low back pain. The physicians did not expand their inquiry, which they should have done under a differential diagnosis assessment. A physician is required to take a “thorough” history based on a patient’s presenting signs and symptoms. If the findings from the medical history and physical exam support a diagnosis, one should be made and treatment instituted. When, in treating a patient, a diagnosis cannot be made, at that time, a differential diagnosis should be made, which includes all reasonable, plausible, and foreseeable causes, signs, and symptoms noted. After forming a differential diagnosis, it is the physician’s duty to rule out all imminent, serious, and life-threatening causes related to the signs and symptoms. Failure to eliminate these causes can subject a patient to a foreseeable risk of harm and would further constitute a breach of the applicable standards of care.
1. Why is it important to be able to make differential diagnoses?
2. Why did the appellate court find that the trial court had not erred in finding that the physicians deviated from the applicable standard of care in their diagnosis and treatment of Corley?
Misdiagnosis does not always end in a verdict for the plaintiff. Summary judgment was properly entered in dismissing an action alleging that a physician had been negligent in failing to diagnose a pregnant patient’s appendicitis in Fiedler v. Steger.
The testimony of expert witnesses for both parties established that diagnosis of appendicitis during pregnancy is difficult, that it probably would not have been diagnosed on the dates in question, and that the appendix had probably ruptured postpartum.
A case before the Mississippi Supreme Court, Hill v. Stewart,
involved a patient who became ill and was admitted to the hospital. The physician was advised of the patient’s recent weight loss, frequent urination, thirst, loss of vision, nausea, and vomiting. Routine laboratory tests were ordered including a urinalysis, but not a blood glucose test. On the following day, a consultant diagnosed the patient’s condition as severe diabetic acidosis. Treatment was given, but the patient failed to respond to the therapy and died. The attending physician was sued for failing to test for diabetes and for failing to diagnose and treat the patient on the first day in the hospital. The attending physician said in court that he suspected diabetes and admitted that when diabetes is suspected, a urinalysis and a blood sugar test should be performed. An expert medical witness testified that failure to do so would be a departure from the skill and care required of a general practitioner. The expert also stated that the patient in this case probably would have had a good chance of survival if treated properly. The state supreme court reversed the directed verdict for the physician by a lower court and remanded the case for retrial. There was sufficient evidence presented to permit the case to go to the jury for decision.
Once a physician concludes that a particular test is indicated, it should be performed and evaluated as soon as practicable. Delay may constitute negligence. The law imposes on a physician the same degree of responsibility in making a diagnosis as it does in prescribing and administering treatment.
Pathologist Fails to Diagnose Cancer
Condon, in Anne Arundel Med. Ctr., Inc. v. Condon, underwent a routine mammogram, which was ordered by her gynecologist on July 1, 1988. The mammogram revealed suspicious lesions in her right breast. Advised by her physician that her breast needed further examination, the patient selected Dr. Moore, a surgeon, to perform a biopsy at AA Medical Center (AAMC). The biopsy was ultimately performed on July 19, 1988. Dr. Williams, who was a pathologist working for Weisburger, MD, a pathology corporation providing contract pathology services to the hospital, performed an evaluation of the tissue. Williams reported noncancerous lesions in the right breast. Based on the pathology report, the surgeon advised the patient that she did not have cancer but that she should undergo frequent mammograms.
On February 7, 1990, the patient returned to her surgeon complaining of an inflammation of her right breast in the same area of her previous biopsy. The surgeon again recommended and performed a biopsy on February 15. Condon was advised that the biopsy results indicated invasive carcinoma of the breast. On February 23, 1990, Condon underwent a bilateral modified radical mastectomy.
Condon brought a malpractice action against Williams and AAMC, alleging the pathologist incorrectly interpreted the first biopsy specimen and that the pathologist’s failure to interpret invasive carcinoma was a departure from the standard of care required and was the proximate cause of her injuries. On the eve of trial, December 9, 1992, counsel for the pathologist settled the claim against his client for $1 million. The circuit court entered judgment on a jury verdict in favor of the plaintiff. AAMC appealed, claiming that the release of the agent Williams served to act as a release for AAMC. The appellant claimed that the common law rule, which states that the release of an agent discharges the principal from liability, should, therefore, apply. The Court of Special Appeals of Maryland agreed.
Radiologist Misreads Patient’s X-Rays
In Boudoin v. Nicholson, Baehr, Calhoun, & Lanasa,
expert testimony supported a finding of loss of chance to survive. A diagnostic radiologist’s improper reading of a patient’s X-ray resulted in a loss of chance to survive a chest wall cancer. Boudoin had suffered a minor shoulder injury while lifting an object at his job as a pipefitter. Because the pain did not subside after a few days, on May 19, he went to see Dr. Nicholson, the family practitioner who had treated him since he was 18. Based on Boudoin’s complaint of pain in the outer chest and a physical examination, Dr. Nicholson took a chest X-ray that, in his opinion, showed nothing remarkable and diagnosed Boudoin’s injury as a muscle strain and prescribed accordingly. Nevertheless, he sent the X-ray to be evaluated by a diagnostic radiologist, Hendler. The radiology report returned to Nicholson read in part:
CHEST: Cardiac, hilar, and mediastinal shadows do not appear unusual. Both lung fields and angles appear clear. A 3.5-cm. broad-based benign osteomatous projection is noted at the level of the vertebral border of the inferior aspect of the left scapula.
IMPRESSION: 1—No evidence of active pulmonary or cardiac pathology.
Boudoin did not contact Nicholson again until January 19
, when he complained of discomfort in his neck and pain in his right shoulder blade and arm. Nicholson again ruled out serious injury through a cervical X-ray, resulting in a diagnosis of cervical spasm, degenerative discs, and bilateral spondylosis. On April 18, 1989, Boudoin returned to Nicholson complaining of night sweats, weight loss, and pain in his left chest. A chest X-ray showed a large abnormal mass. Boudoin was given both the 1988 X-ray and the one just taken and was immediately sent to see a pulmonologist, Dr. Rosenberg. While Boudoin was undergoing a breathing test, Rosenberg called Mrs. Boudoin into his office and showed her the tumor as it appeared on the X-rays taken 11 months apart and also had her read Hendler’s May 1988 report. Rosenberg told Mrs. Boudoin that the tumor could have been removed easily when it was as small as it first appeared. Although the tumor initially appeared to be on Boudoin’s left lung, innumerable tests and examinations established that the cancer was malignant and was in the pleura, the tissue lining the chest wall. No sign of metastasis was found in the lymph nodes of the chest or other tissues. Dr. Rigby surgically removed the tumor, now measuring 20 by 17.5 by 7 cm on May 10, 1989, along with a large portion of the chest wall and four ribs. Because a 4- or 5-mm metastatic deposit was found in Boudoin’s right diaphragm, a section of that tissue also was removed. There was no sign of cancer on the lungs. A metal plate was implanted to replace the structural support lost with the removal of the ribs. After recovering from his surgery, Boudoin underwent concurrent radiation and chemotherapy. X-rays and examinations done every other month through March 1990 showed no signs of recurrence. Four months later, however, abnormalities were detected, and a second surgery, performed on July 20, 1990, revealed that the tumor had spread. As a result of the significant spread of cancer, the only tissue removed during surgery was a biopsy sample, which confirmed a malignant recurrence. Boudoin and his family were informed that even with chemotherapy, the prognosis was very poor. Further treatment was restricted to alleviating pain until Boudoin’s death on December 18, 1990. Hendler appealed an award of $
0,000 based on a jury’s finding that the physician’s improper reading of Boudoin’s X-ray resulted in a loss of chance to survive a chest wall cancer. The appeals court affirmed the finding of liability and causation but reduced the amount of the award.
Failure to Read X-Ray Report
On February 5, 1988, Mr. Griffett had been taken to the emergency department with a complaint of abdominal pain.40 Two emergency department physicians evaluated him and ordered X-rays, including a chest X-ray. Dr. Bridges, a radiologist, reviewed the chest X-ray and noted in his written report that there was an abnormal density present in the upper lobe of Griffett’s right lung. Griffett was referred to Dr. Ryan, a gastroenterologist, for follow-up care. Ryan admitted Griffett to the hospital for a 24-hour period and then discharged him without having reviewed the radiology report of the February 5 chest X-ray. On March 1, 1988, Griffett continued to experience intermittent pain. A nurse in Ryan’s office suggested that Griffett go to the hospital emergency department if his pain became persistent.
In November 1989, Dr. Baker examined Griffett, who was complaining of pain in his right shoulder. Baker diagnosed Griffett’s condition as being cancer of the upper lobe of his right lung. The abnormal density on the February 5, 1988, chest X-ray was a cancerous tumor that had doubled in size from the time it had been first observed. The tumor was surgically removed in February 1990; however, Griffett died in September 1990.
Dr. Muller, an internist and expert witness for the plaintiff, testified that Griffett would have had a greater likelihood of survival if Ryan had made an earlier diagnosis. The defendants objected to Muller’s testimony, arguing that the plaintiff failed to establish that Muller was an expert witness capable of testifying as to the proximate cause of Griffett’s alleged shorter life span. The trial court initially overruled the defendants’ objection to Muller’s testimony.
The jury returned a verdict for the plaintiff in the amount of $500,000. On a motion from the defendants, the trial court set aside the verdict, ruling that it erred by allowing Muller to testify as to causation. The plaintiff appealed, and the Virginia Supreme Court held that the plaintiff had sufficiently identified Muller as an expert witness capable of testifying as to the question of causation. Evidence was sufficient to establish that the failure to diagnose lung cancer, in connection with the emergency department visit, was the proximate cause of the patient’s death. The duty to review an X-ray contained in a patient’s medical record should not vary between an internist and a gastroenterologist. Evidence showed that Ryan’s negligence destroyed any substantial possibility of Griffett’s survival.
This section focuses on negligence cases that relate to medical treatment and various legal and ethical issues that healthcare professionals encounter when treating patients. Medical treatment is the attempt to restore the patient to health following a diagnosis. It is the application of various remedies and medical techniques, including the use of medications for the purpose of treating an illness or trauma. Treatment can be active treatment, directed immediately to the cure of the disease or injury; causal treatment, directed against the cause of a disease; conservative treatment, designed to avoid radical medical therapeutic measures or operative procedures; expectant treatment, directed toward relief of untoward symptoms but leaving cure of the disease to natural forces; palliative treatment, designed to relieve pain and distress with no attempt to cure; preventive/prophylactic treatment, aimed at the prevention of disease and illness; specific treatment, targeted specifically at the disease being treated; supportive treatment, directed mainly to sustaining the strength of the patient; or symptomatic treatment, meant to relieve symptoms without effecting a cure (i.e., intended to address the symptoms of an illness but not its underlying cause, as in scleroderma, lupus, or multiple sclerosis, for example).
Medical Practice Guidelines are evidence-based best practices that are developed to assist physicians in the diagnosis and treatment of their patients. It should be remembered that best practices are not iron-clad rules. Skillful medical judgment demands that the physician determine how to use best practices and interpret the information.
Choice of Treatment
There can be two schools of thought as to which treatment would be in the best interest of the patient. The potential for liability affects the choice of treatment a physician will follow with his or her patient. Use of unprecedented procedures that create an untoward result may cause a physician to be found negligent even though due care was followed. A physician will not be held liable for exercising his or her judgment in applying a course of treatment supported by a reputable and respected body of medical experts even if another body of expert medical opinion would favor a different course of treatment. The two schools of thought doctrine is only applicable in medical malpractice cases in which there is more than one method of accepted treatment for a patient’s disease or injury. Under this doctrine, a physician will not be liable for medical malpractice if he or she follows a course of treatment supported by reputable, respected, and reasonable medical experts.
A physician’s efforts do not constitute negligence simply because they were unsuccessful in a particular case. A physician cannot be required to guarantee the results of his or her treatment. The mere fact that an adverse result may occur following treatment is not in and of itself evidence of professional negligence.
Selecting the Wrong Treatment
Although there can be two schools of thought on how to treat a patient, the failure of an attending physician to carefully recognize recommendations by consulting physicians, who determines a different diagnosis and recommends a different course of treatment in a particular case, can result in liability for damages suffered by the patient. That was the case in Martin v. East Jefferson General Hospital
in which the attending physician continued to treat the patient for a viral infection despite three other physicians’ diagnoses of lupus and their recommendations that the attending physician treat the patient for collagen vascular disease. The trial court found that lupus had been more probable than not the cause of the patient’s death and that her chances of recovery had been destroyed by the physician’s failure to rule out that diagnosis. Damages totaling $150,000 were awarded to the plaintiff.
If a consulting physician has suggested a diagnosis with which the treating physician does not agree, it would be prudent to consider obtaining the opinion of a second consultant who could either confirm or disprove the first consultant’s theory. Failure to diagnose and properly treat a suspected illness is an open door to liability.
Delay in Treatment
A physician may be liable for failing to respond promptly if it can be established that such inaction caused a patient’s death.
A patient afflicted with lung cancer was awarded damages in Blackmon v. Langley
because of the failure of the examining physician to inform the patient in a timely manner that a chest X-ray showed a lesion in his lung. The lesion eventually was diagnosed as cancerous. The physician contended that because the evidence showed the patient had less than a 50% chance of survival at the time of the alleged negligence, he could not be the proximate cause of injury. The Arkansas Supreme Court found that the jury was properly entitled to determine that the patient suffered and lost more than would have been the case had he been notified promptly of the lesion.
Lab Results Buried in Files
When a woman has a pelvic exam, she expects her doctor to let her know if there’s a problem. But that didn’t happen for Charlene Hutchens in 2002 or in 2003. It wasn’t until 2004 that she learned she had advanced cervical cancer.
The gynecologist who failed to tell her about her abnormal test results, David Lubetkin of Boca Raton, robbed her of peace of mind and the ability to have children, she told the Florida Board of Medicine on Saturday. “I don’t want this to happen to any other person,” said Hutchens, now 27. “It’s destroyed my life.”
Lubetkin, who conceded there were mistakes and apologized to Hutchens at the hearing in Fort Lauderdale, was given the maximum fine, $20,000.
—Carol Gentry, Health News Florida, June 5, 2010.
Untimely Cesarean Section
The attending physician in Jackson v. Huang
was negligent in failing to perform a timely cesarean section. The attending physician applied too much traction when he was faced with shoulder dystocia, a situation in which a baby’s shoulder hangs under the pubic bone, arresting the progress of the infant through the birth canal. As a result, the infant suffered permanent injury to the brachial plexus nerves of his right shoulder and arm. On appeal of this case, no error was found in the trial court’s finding of fact when such finding was supported by testimony of the plaintiff’s expert witness. The trial judge accepted the testimony of Dr. Forte, the expert witness, who testified that the defendant possessed the necessary skill and knowledge relevant to the practice of obstetrics and gynecology. The defendant, because of prolonged labor and weight of the baby, should have anticipated the possibility of shoulder dystocia and performed a timely cesarean section.
Failure to Treat Known Condition
A medical malpractice action was filed against the physician in Modaber v. Kelley
for personal injuries and mental anguish caused by the stillbirth of a child. The circuit court entered judgment on a jury verdict against the obstetrician, and an appeal was taken. The Virginia Supreme Court held that the evidence was sufficient to support a finding that the obstetrician’s conduct during the patient’s pregnancy caused direct injury to the patient. Evidence at trial showed that the physician failed to treat the mother’s known condition of toxemia, including the development of high blood pressure and the premature separation of the placenta from the uterine wall, and that the physician thereafter failed to respond in a timely fashion when the mother went into premature labor. The court also held that injury to the unborn child constituted injury to the mother and that she could recover for the physical injury and mental anguish associated with the stillbirth. The court found that the award of $750,000 in compensatory damages was not excessive.
Failure to Treat Evolving Emergency
The Bureau of Professional Medical Conduct (BPMC), in Bell v. New York State Department of Health,
upon investigation of a complaint charged that the physician failed to properly treat and respond to his patient’s evolving emergency cardiac condition despite symptoms and circumstances indicating the need for immediate hospitalization. The physician denied the allegations, and the State Board for Professional Medical Conduct (committee) conducted a hearing.
When the patient visited the physician in September 1994, he was suffering from high blood pressure and taking medication for that condition. From 1994 to 1996, the patient was treated for various medical conditions, including high cholesterol and hypertension. On May 29, 1997, the patient visited the physician complaining of chest pains, anxiety panic attacks, and shortness of breath. During that visit, the physician performed an electrocardiogram (ECG), ordered chest X-rays, and referred the patient to a cardiac specialist for consultation. The physician also ordered a test for cardiac enzymes; however, the results were not available for several days. The physician prescribed asthma medication and sent the patient home. The next day, the physician attempted to call the patient to inquire about his condition but was unable to reach him. Within less than a week, on June 2, 1997, the patient returned to the physician’s office complaining of continued chest pain. At that time, the physician arranged a visit with the cardiologist for the same day. The cardiologist reviewed the patient’s medical history; performed an ECG; reviewed the May 29, 1997, ECG; and concluded that the patient had a myocardial infarction followed by postinfarction angina. The patient was immediately sent to the hospital. The physician was not present at the hearing and did not call any witnesses to rebut BPMC’s expert witness. Expert opinion revealed that the physician’s response to the patient’s symptoms on May 29, 1997, and June 2, 1997, failed to meet medically acceptable standards of care. On February 21, 2001, the committee sustained the charge of negligence.
The physician’s license was suspended for 2 years; however, the suspension was stayed, and the physician was placed on probation.
On appeal, the Supreme Court of New York found that given the serious nature of the patient’s complaints and symptoms and the potential consequences, the committee’s conclusions were found by the court to be supported by substantial evidence. According to Greenburg (one of the defendants in the case), the physician’s course of conduct in performing an ECG, ordering a cardiac enzyme test, and referring the patient to a cardiologist demonstrated that the physician suspected that the patient was experiencing cardiac problems. However, given the patient’s symptoms and history, it was Greenburg’s opinion that the physician failed to adhere to medically acceptable standards of treatment by failing to obtain the results of the cardiac enzyme test expeditiously and not referring the patient to an emergency department immediately.
Failure to Respond to Emergency Calls
Physicians on call in an emergency department are expected to respond to requests for emergency assistance when such is considered necessary. Failure to respond is grounds for negligence should a patient suffer injury as a result of a physician’s failure to respond.
Issues of fact in Dillon v. Silver
precluded summary dismissal of an action charging that a woman’s death from complications of an ectopic pregnancy occurred because of a gynecologist’s refusal to treat her despite a request for aid by a hospital emergency department physician. Although the gynecologist contended that no physician–patient relationship had ever arisen, the hospital bylaws not only mandated that the physician accept all patients referred to him, but also stated that the emergency department physician had authority to decide which service physician should be called and required the service physician to respond to such a call.
Thousands of brand and generic drugs in use have led to an increase in medication errors. Such errors are a leading cause of patient injuries. Physicians should encourage the limited and judicious use of all medications and periodically document the reason for their continuation. They should be alert to any contraindications and incompatibilities among prescription, over-the-counter drugs, and herbal supplements. The negligent administration of medications is often a result of errors, such as the wrong medication, the wrong patient, the wrong dosage, and the wrong route.
Expert testimony in Leal v. Simon,
a medical malpractice action, supported the jury’s determination that the physician had been negligent when he reduced the dosage of a resident’s psychotropic medication, Haldol. The resident, a 36-year-old individual who had been institutionalized his entire life, was a resident in an intermediate-care facility. The drug was used for controlling the resident’s self-abusive behavior. Expert medical testimony showed that the physician failed to familiarize himself with the resident’s history, failed to secure the resident’s complete medical records, and failed to wean the resident slowly off the medication.
Abuse in Prescribing Medications
The board of regents in Moyo v. Ambach
49 determined that a physician prescribed methaqualone fraudulently and with gross negligence to 20 patients. The board of regents found that the physician did not prescribe methaqualone in good faith or for sound medical reasons. His abuse in prescribing controlled substances constituted the fraudulent practice of medicine. Expert testimony established that it was common knowledge in the medical community that methaqualone was a widely abused and addictive drug. Methaqualone should not have been used for insomnia without first trying other means of treatment. On appeal, the court found that there was sufficient evidence to support the board’s finding.
Wrongful Supply of Medications
Damages were awarded in Argus v. Scheppegrell
50 for the wrongful death of a teenage patient with a preexisting drug addiction. It was determined that the physician wrongfully supplied the patient with prescriptions for controlled substances in excessive amounts, with the result that the patient’s preexisting drug addiction worsened, causing her death from a drug overdose. The Louisiana Court of Appeal held that the suffering of the patient caused by drug addiction and deterioration of her mental and physical condition warranted an award of $175,000. Damages of $120,000 were to be awarded for the wrongful death claims of the parents, who not only suffered during their daughter’s drug addiction caused by the physician in wrongfully supplying the prescription, but who also were forced to endure the torment of their daughter’s slow death in the hospital.
Operating rooms, hidden behind closed doors, are often the scenes of negligent acts. A Wyoming man was awarded $1.175 million after doctors removed the wrong cervical disc during spinal surgery.51 The potential for negligence in the surgical setting seems to be the never-ending story, as illustrated in the cases described in this section. Wrong surgery, wrong site, wrong patient, foreign objects left in patients, and hidden mistakes all continue to be common occurrences.
As noted in the following news clipping, surgical instruments inadvertently left in patients are reported by hospitals accredited by The Joint Commission. The various states also require the reporting of surgical errors, such as wrong patient, wrong surgery, and wrong site.
Wrong-site surgical mistakes have multiple causes, including draping the wrong surgical site, marking the wrong surgical site, and failure to mark the surgical site as required by hospital policy. A process for reducing the possibility of wrong-site surgery includes the following:
Joint Commission Alert: Preventing Retained Surgical Items
The Joint Commission today issued a Sentinel Event Alert urging hospitals and ambulatory surgery centers to take a new look at how to avoid mistakenly leaving items such as sponges, towels, and instruments in a patient’s body after surgery.
Known in medical terminology as the unintended retention of foreign objects (URFOs) or retained surgical items (RSIs), this is a serious patient safety issue that can cause death or harm patients physically and emotionally. The Joint Commission has received more than 7
voluntary reports of URFOs in the past seven years.
—Elizabeth Eaken Zhani, The Joint Commission, October 17, 201352
• Clearly mark the correct surgical site. If the actual site cannot be marked, a mark should be placed in close proximity to the surgical site.
• Both the operating surgeon and patient must participate in and confirm the marking of the preoperative marking process. This may not always be possible when emergency surgery is required (e.g., the patient may be in a comatose state from an accident).
• The patient’s medical record must be available to help determine the correct site prior to the start of surgery.
• The patient’s imaging studies relating to the surgical procedure to be performed must be available for review prior to surgery. This will help to determine that the correct surgical site has been identified.
• Anesthesia is not administered until the operating surgeon is in the operating suite.
• The surgical team (all disciplines) conducts a “time-out” prior to the start of surgery to verify that the correct patient is on the surgical table, the correct surgical site has been marked, and the correct procedure has been identified.
The Phantom Surgeon
Here, the list of surgical mistakes begins with the phantom surgeon. Watkins was referred to Dr. Eliachar, an attending surgeon, who diagnosed a deviated septum and advised that a surgical procedure be performed. When asked by the patient whether he would be performing the procedure, Eliachar testified that he would operate with the assistance of residents. On the morning of Watkins’s surgery, Eliachar was scheduled to perform four elective surgeries in two adjoining operating rooms. The anesthesiologist was Dr. Popovich, who was also involved in more than one surgery at the time and, like Eliachar, moved between operating rooms during the patients’ procedures. The nurse anesthetist, who assisted Popovich in Popovich’s absence, was Woods. Dr. Popovich did not inform the patient that a nurse anesthetist would perform the intubation/extubation and that he would not be present throughout the operation. The chief resident of the ear, nose, and throat department, Dr. Guay, performed the surgery on Watkins. Eliachar, who was listed in the operative records and discharge summary as the performing surgeon, allegedly supervised Guay’s work as he moved between the adjoining operating rooms.
Guay testified that he first met the patient on the day of the surgery in the preoperative holding area minutes before the patient was transported to the operating room. He also testified that Eliachar assigned the surgery to him and that Eliachar did not scrub up that morning. Guay, upon meeting the patient, told the patient that he would be operating on her with Eliachar. During the operation, which began at 7:30 AM and ended at 11:10 AM, the patient was under a general anesthesia and was intubated by the nurse anesthetist. According to Eliachar, it was the surgeon’s ultimate responsibility to ensure that the patient maintained an adequate airway during and after the operation, yet Eliachar could not recall whether he was present when the patient was extubated. He believed that the nurse anesthetist extubated the patient. Popovich was not present for the extubation and did not evaluate the patient between the operating room and the postanesthesia care unit (PACU). The nurse anesthetist stated that the patient was extubated at approximately 10:30 AM in the operating room and that he and Guay then transported the patient to PACU. On the way to the PACU at 10:35 AM, the patient’s heart rate was 85 beats per minute according to the records of nurse Woods, yet the nurse’s notes from PACU indicate that at 10:35 AM, when the patient was admitted to the PACU, her heart rate was 50 beats per minute. The nurse anesthetist’s records also indicate that the patient was awake and responsive when he transported her to the PACU, yet the PACU records indicate that the patient was unresponsive, emitting a large amount of clear urine, and not moving. At 10:40 AM, the nurse anesthetist’s records indicate that the patient’s heart rate was
to 80 beats per minute, while the PACU nurse’s record states 30 beats per minute, a rate that is admittedly life-threatening according to the nurse anesthetist. When the heart rate hit 30 beats per minute, the nurse anesthetist recalls, resuscitative measures were begun on the patient. The patient was given cardiopulmonary resuscitation and was reintubated at 10:50 AM. The patient was left in a persistent vegetative state.
The jury found for the plaintiffs on the fraud and battery. The evidence presented demonstrated Eliachar represented to Watkins that he would be operating on her. Watkins specifically asked Eliachar whether he would be performing the surgery. When making the representation to the patient, Eliachar knew that he was scheduled to perform simultaneous surgeries on that date; as the performing surgeon of record, he had the responsibility to monitor the patient throughout the entire operation, including the postoperative procedures on his patient. He admittedly knew the extubation parameters and would have prevented Watkins’s premature extubation had he been the surgeon in the operating room at the time. Based on this evidence, the elements of fraud were demonstrated. The appeals court held that the trial court did not err in denying the motion for directed verdict on that issue.53
Wrong Surgical Procedure
In Southwestern Kentucky Baptist Hospital v. Bruce,
a patient admitted for conization of the cervix was taken mistakenly to the operating room for a thyroidectomy. The physician was notified early during surgery that he had the wrong patient on the operating room table. The operation was terminated immediately. The thyroidectomy was not completed, and the incision was sutured. The patient filed an action for malpractice and recovered $10,000 from the physician and $90,000 from the hospital. That the patient mistakenly answered to the name of another patient who had been scheduled for a thyroidectomy did not excuse the failure of the surgeon, the anesthesiologist, and the surgical technician to determine the identity of the patient by examining her identification bracelet. The Kentucky Supreme Court held that the verdict was not excessive in view of the injuries, which consisted of a 4-inch incision along the patient’s neck, which became infected and required cosmetic surgery.
Correct Surgery: Wrong Site
The patient, in Holdsworth v. Galler,
had a 2-cm cancerous tumor on the left side of his colon. Unfortunately, the surgeon erroneously performed right-sided colon surgery to remove the tumor. After the surgeon recognized the error, he performed the required left-sided abdominal surgery 3 days later. At the first surgery on the patient’s right side, the surgeon removed the end of the patient’s small intestine, his entire right colon, and the majority of his transverse colon; consequently, 40% to 45% of the colon was removed. Three days following the wrong-site surgery, the patient had to undergo left-sided surgery, after which he was left with approximately 20% of his colon. The patient developed complications and died 6 weeks thereafter.
Wrong Site Surgery: Fraud
The physician-petitioner in In re Muncan
56 did not review either the patient’s CT scan or magnetic resonance imaging films prior to surgery. In addition, he did not have the films with him in the operating room on the day of surgery. Had he done so, he would have discovered that the CT scan report erroneously indicated that there was a mass in the patient’s left kidney when, in fact, such mass was located in the patient’s right kidney. During surgery, the physician did not observe any gross abnormalities or deformities in the left kidney and was unable to palpate any masses. Nonetheless, he removed the left kidney. The physician was later advised that he had removed a healthy kidney and that he may have removed the wrong kidney. The physician discharged the patient with a postoperative diagnosis of left renal mass, failing to note that he had in fact removed a tumor-free kidney. In September 1999, when another CT scan revealed the presence of a 6- by 7-cm mass in the patient’s right kidney, the physician deemed this to be a new tumor that was not present on the CT scan conducted 4 months earlier. The diagnosis, however, appeared highly suspect given the medical testimony that this new tumor was in the same location and had the same consistency and appearance as the tumor appearing in the prior CT study. The record also makes clear that it was highly unlikely that a tumor of this dimension could have achieved such size during the relatively brief period between the two CT studies.
A hearing committee of the State Board for Professional Medical Conduct sustained allegations that the physician practiced with gross negligence and negligence on more than one occasion. The committee suspended the physician’s license to practice medicine for 48 months, stayed said suspension for 42 months, and placed the physician on probation. Upon appeal to the Administrative Review Board for Professional Medical Conduct (ARB), the ARB affirmed the committee’s findings as to guilt and penalty and, further, sustained the specification alleging fraudulent practice. The physician commenced an action to annul that portion of the ARB’s determination pertaining to the charge of fraudulent practice. The Supreme Court of New York, Appellate Division, Third Department held that the evidence was sufficient to support an inference of fraud. The physician knew he removed the wrong kidney and instead of taking steps to rectify the situation, intentionally concealed his mistake.
Foreign Objects Left in Patients
Physicians who change an organization’s procedures governing surgical operations can be liable for those acts should they result in patient injury, even if they are performed by an organization’s employees. In Martin v. Perth Amboy General Hospital,
a patient sued the hospital, cardiovascular surgeon, and nurses for leaving a laparotomy pad in his stomach. The surgeon, Dr. Lev, who performed the operation, was assisted by two other physicians as well as by a scrub nurse and a circulating nurse. Before the laparotomy pads were brought into the operating room, a strip of radiopaque material was embedded between the folds of the laparotomy pads that would show on an X-ray if a pad was left in the abdomen. Rings were attached to the laparotomy pads to prevent errors in counts made by the nurses; however, before the pads were used, the nurses, at the direction of the operating surgeon, removed the rings. The sponge count at the end of the operation indicated that no sponges were missing. Lev contended that the charge against him adopted the captain of the ship doctrine, which is not recognized by the state of New Jersey. If Lev had not ordered the rings to be removed by the nurses, the court would have agreed that the charge was contrary to state judicial decisions. By exercising control over the nurses to the extent of directing them to remove the rings and thus eliminating the safeguards provided by the hospital to ensure a proper count by its employees, the surgeon became the nurses’ temporary or special employer with regard to their duties involving the laparotomy pads used during the operation. Thus, the surgeon was equally liable with the hospital for the nurses’ subsequent negligence in counting the pads.
The most common methods of preventing operating room objects from being left in a surgical wound are:
1. Sponge and instrument counts
2. Use of surgical sponges with radiopaque threads
3. Use of X-rays for detecting foreign objects left in an operative wound
NEEDLE FRAGMENT LEFT IN PATIENT
Williams v. Kilgore,
8 So. 2d 51 (Miss. 1992)
On March 31, 1964, the patient-plaintiff was admitted to the medical center for treatment of metastatic malignant melanoma on her left groin. On April 6, 1964, an unknown resident performed a bone marrow biopsy. The needle broke during the procedure and a fragment lodged in the patient. The patient was told that the needle would be removed the following day, when surgery was to be performed to remove a melanoma from her groin. The operating surgeons, Dr. Peede and Dr. Kilgore, were informed of the presence of the needle fragment prior to surgery. A notation by Peede stated that the needle fragment had been removed.
The needle fragment, however, had not been removed. The patient remained asymptomatic until she was hospitalized for back pain in September 1985. During her hospitalization, the patient learned that the needle fragment was still in her lower back. The needle fragment was finally removed in October 1985. The physician’s discharge report suggested that there was a probable linkage between the needle fragment and recurrent strep infections that the patient had been experiencing. Although the patient’s treating physicians had known as early as 1972 that the needle fragment had not been removed, there was no evidence that the patient was aware of this fact.
The defendant physicians argued that the statute of limitations had tolled under Mississippi Code, thus barring the case from proceeding to trial. The circuit court entered a judgment for the physicians, and the plaintiff appealed.
Was the plaintiff’s malpractice action time barred?
The Mississippi Supreme Court held that the plaintiff’s action was not time barred and was, therefore, remanded for trial.
A patient’s cause for action begins to accrue and the statute of limitations begins to run when the patient can reasonably be held to have knowledge of the disease or injury. In this instance, the patient began to experience infections and back pain in 1985. Moreover, this is the date she discovered that the needle was causing her problems, never having been informed previously that the needle from the 1964 biopsy procedure remained lodged within her.
1. Describe under what circumstances the plaintiff’s action would have been time barred by the statute of limitations.
2. Discuss the legal and ethical issues involved in this case (e.g., documentation in the medical record indicating that the needle fragment had been removed).
In Ozment v. Wilkerson,
Mrs. Wilkerson was suffering from Crohn’s disease, a chronic ailment that affects the colon and small intestine. Part of the treatment for the disease is to allow the patient’s gastrointestinal (GI) system to rest, and this means that the patient cannot eat. The patient is given a concentrated caloric solution intravenously. To deliver the needed nutritional solution, Dr. Ozment needed to place a central venous catheter into Wilkerson’s body. Wilkerson’s pericardial sac was punctured during the procedure. As a result, a condition known as cardiac tamponade (accumulation of fluids in the pericardial sac) occurred. Wilkerson required emergency surgery to correct this condition and to repair the puncture. The defendants, following a jury verdict favorable to the plaintiffs, filed an appeal.
The Alabama Supreme Court held that expert testimony supported the jury’s finding that the catheter was inserted incorrectly. The plaintiff’s expert, Dr. Moore, testified that the tip of the catheter should have been placed in the superior vena cava and should not have extended into the heart. Moore also stated that placing the tip of the catheter in the atrium, or against the wall of the atrium, was a deviation from the standard of care ordinarily exercised by a physician in the same line of practice under similar circumstances. Moore stated that the intravenous central line perforated the right atrium and caused the cardiac tamponade. Moore’s testimony provided sufficient evidence from which the jury could determine that Ozment inserted the catheter incorrectly and had thereby breached his duty of care to Wilkerson.
In Ward v. Epting,
the anesthesiologist failed to establish and maintain an adequate airway and resuscitate properly a 22-year-old postsurgical patient, which resulted in the patient’s death from lack of oxygen. Expert testimony based on autopsy and blood gas tests showed that the endotracheal tube had been removed too soon after surgery and that the anesthesiologist, in an attempt to revive the patient, reinserted the tube into the esophagus. The record on appeal was found to have contained ample evidence that the anesthesiologist failed to conform to the standard of care and that such deviation was the proximate cause of the patient’s death.
Improper Positioning of Arm
The plaintiff in Wick v. Henderson
experienced pain in her left arm upon awakening from surgery; an anesthesiologist told her that her arm was stressed during surgery. According to the plaintiff, she sustained an injury to the ulnar nerve in her left upper arm. A malpractice action was filed against the hospital and the anesthesiologist. The plaintiff sought recovery on theory of res ipsa loquitur. There was testimony that the main cause of the injury was the mechanical compression of the nerve by improper positioning of the arm during surgery. The trial court granted the defendants a directed verdict, resulting in dismissal of the case.
On appeal, the Iowa Supreme Court held that the res ipsa loquitur doctrine applied. The plaintiff must prove two foundational facts in order to invoke the doctrine of res ipsa loquitur. She must prove, first, that the defendants had exclusive control and management of the instrument that caused her injury, and, second, that it was the type of injury that ordinarily would not occur if reasonable care had been used. As to control, the plaintiff can show an injury resulting from an external force applied while she lay unconscious in the hospital. It is within common knowledge and experience of a layperson that an individual does not enter the hospital for gallbladder surgery and leave with ulnar nerve injury.
Sciatic Nerve Injury
The plaintiff in Lacombe v. Dr. Walter Olin Moss Regional Hospital
61 was admitted to the hospital for a bladder suspension operation. Upon regaining consciousness in the recovery room, the plaintiff began complaining of severe pain in her right buttock, shooting down the back of her right leg. The plaintiff was eventually diagnosed with sciatic nerve injury. It is undisputed that the injury is permanent. A medical malpractice claim was filed against the hospital and the physicians involved in the surgery. A medical review panel rendered a decision finding no breach of the standard of care. The plaintiff then filed a malpractice suit against the hospital and physicians. By the time of trial, all of the defendants, except the hospital, had been dismissed from the litigation. After trial, the trial judge rendered judgment in favor of the plaintiff. The trial judge found that, applying the doctrine of res ipsa loquitur to the evidence, the plaintiff had proven her case. Accordingly, he found the hospital responsible under the theory of respondeat superior for the negligent conduct of its agents (the personnel who prepared the plaintiff for surgery and the physicians who conducted the operation).
The hospital contended that the trial court incorrectly applied the doctrine of res ipsa loquitur. The facts established by the plaintiff must also reasonably permit the jury to discount other possible causes and to conclude it was more likely than not that the defendant’s negligence caused the injury.
The Louisiana Court of Appeal agreed with the trial court that the evidence warranted an inference of negligence on the part of the defendant caused the injury and that an inference of res ipsa loquitur could be applied. Expert testimony established that the plaintiff was suffering from a sciatic nerve injury and that the injury was permanent. Experts on both sides agreed that sciatic nerve injury was not a known risk of this surgery. The testimony indicated that the plaintiff went into the hospital without the injury and came out with it.
10.9 DISCHARGE AND FOLLOW-UP CARE
The premature discharge of a patient is risky business. The intent of discharging patients more expeditiously is often a result of a need to reduce costs. As pointed out by Dr. Nelson, an obstetrician and board member of the American Medical Association, such decisions “should be based on medical factors and ought not be relegated to bean counters.”
As noted in Doan v. Griffith,
discharge instructions must be clear and complete. In this case, an accident victim was admitted to the hospital with serious injuries, including multiple fractures of his facial bones. The patient contended that the physician was negligent in not advising him at the time of discharge that his facial bones needed to be realigned by a specialist before the bones became fused. As a result, his face became disfigured. Expert testimony demonstrated that the customary medical treatment for the patient’s injuries would have been to realign his fractured bones surgically as soon as the swelling subsided and that such treatment would have restored the normal contour of his face. The appellate court held that the jury reasonably could have found that the physician failed to provide timely advice to the patient regarding his need for further medical treatment and that such failure was the proximate cause of the patient’s condition.
Failure to Provide Follow-Up Care
Failure to provide follow-up care can result in a lawsuit if such failure results in injury to a patient. In Truan v. Smith,64 the Tennessee Supreme Court entered judgment in favor of the plaintiffs, who had brought action against a treating physician for damages alleged to have been the result of malpractice by the physician in the examination, diagnosis, and treatment of breast cancer. In January or February of 1974, the patient noticed a change in the size and firmness of her left breast, which she attributed to an implant. She later noticed discoloration and pain on pressure. While being examined by the defendant on March 25, 1974, for another ailment, the patient brought her symptoms to the physician’s attention but received no significant response, and the physician made no examination of the breast at that time. The patient brought her symptoms to the attention of her physician for the second time on May 6, 1974. She had been advised by the defendant to observe her left breast for 30 days for a change in symptoms, which at the time of the examination included discomfort, discoloration, numbness, and sharp pain. She was given an appointment for 1 month later. The patient, on the morning of her appointment, June 3, 1974, called the physician’s office and informed the nurse that her symptoms had not changed and that she would like to know if she should keep her appointment. The nurse indicated that she would pass on her message to the physician. The patient assumed she would be called back if it was necessary to see the physician.
By late June, the symptoms became more acute, and the patient made an appointment to see the defendant physician on July 8, 1974. The patient also was scheduled to see a specialist on July 10, 1974, at which time she was admitted to the hospital and was diagnosed as having a malignant mass. A radical mastectomy was performed. Expert witnesses expressed the opinion that the mass had been palpable 7 months before the removal. When the defendant undertook to give the plaintiff a complete physical examination and embarked on a wait-and-see program as an aid in diagnosis, the physician should have followed up with his patient, who died before the conclusion of the trial.
The state supreme court held that the evidence was sufficient to support a finding that the defendant was guilty of malpractice in failing to inform his patient that cancer was a possible cause of her complaints and in failing to make any effort to see his patient at the expiration of the observation period instituted by him.
Failure to Follow-up on Test Results
The patient in Downey v. University Internists of St. Louis, Inc.65 entered the hospital in December of 1996 for heart bypass surgery. Two chest X-rays were taken during this hospitalization. The X-rays were interpreted as showing a lesion in the patient’s left lung and that a neoplasm could not be completely ruled out. If clinically warranted, CT scanning could be performed. No further tests or evaluations were ordered in response to these reports. A jury found that the now-deceased patient had a material chance of surviving his cancer and that his chance of survival was lost as a result of the physician’s negligence. The jury, however, did not award damages to compensate for the harm suffered. The Missouri Court of Appeals found that the verdict of no-damage award was inconsistent with the evidence and remanded the case for a new trial.
Lack of patient care follow-up can sometimes be the result of the physician abandoning his patient for a variety of reasons. It can be the result of a personality conflict or pure negligence in following up on the patient’s care needs. The relationship between a physician and a patient, once established, continues until it is ended by the mutual consent of the parties, the patient’s dismissal of the physician, the physician’s withdrawal from the case, or agreement that the physician’s services are no longer required. A physician who decides to withdraw his or her services must provide the patient with reasonable notice so that the services of another physician can be obtained. Premature termination of treatment is often the subject of a legal action for abandonment—the unilateral termination of a physician–patient relationship by the physician without notice to the patient. The following elements should be established in order for a patient to recover damages for abandonment:
• Medical care was unreasonably discontinued.
• The discontinuance of medical care was against the patient’s will. Termination of the physician–patient relationship must have been brought about by a unilateral act of the physician. There can be no issue of abandonment if the relationship is terminated by mutual consent or by dismissal of the physician by the patient.
• The physician failed to arrange for care by another physician.
• Foresight indicated that discontinuance might result in physical harm to the patient.
• Actual harm was suffered by the patient.
The Centers for Disease Control and Prevention estimates that nearly 2 million patients are stricken annually with hospital-acquired infections. There are estimates that as many as 90,000 of these patients die annually as a result of these infections.
The mere fact that a patient contracted an infection after an operation will not, in and of itself, cause a surgeon to be liable for negligence. The reason for this, according to the Nebraska Supreme Court in McCall v. St. Joseph Hospital,
is as follows:
Neither authority nor reason will sustain any proposition that negligence can reasonably be inferred from the fact that an infection originated at the site of a surgical wound. To permit a jury to infer negligence would be to expose every doctor and dentist to the charge of negligence every time an infection originated at the site of a wound. We note the complete absence of any expert testimony or any offer of proof in this record to the effect that a staphylococcus infection would automatically lead to an inference of negligence by the people in control of the operation or the treatment of the patient.
Several cases that have lead to infection-related lawsuits are reviewed below.
Failure to Effectively Manage Infection
Making a case for using clinical guidelines is demonstrated in McKowan v. Bentley,
in which the patient, Mrs. Bentley, sought advice about gastric bypass surgery from Dr. McKowan in January 1993. On March 8, 1993, McKowan, assisted by Dr. Day, performed gastric bypass surgery on Bentley to alleviate her morbid obesity. Bentley was discharged from the hospital 2 days later with no indication of complications. On March 14, Bentley returned to see McKowan with redness and swelling around her incision. McKowan removed the sutures and found that Bentley had a wound infection. There was no indication that she had an intra-abdominal infection at that time.
On March 15, the drainage from her wound changed in character, and she was admitted to the hospital. McKowan operated on Bentley and drained the abscesses. Bentley had exploratory surgery on March 17 so that the doctors could see the extent to which the surgery had successfully reduced her infection. McKowan operated again and found no disruption of the wound site.
On March 18, another follow-up surgery was performed. Following that surgery, Bentley was placed on a ventilator and began receiving total parenteral nutrition intravenously.
On March 22, surgery was again performed on Bentley. This time, McKowan cut the front part of the stomach and placed a gastrostomy tube in the lower stomach. On March 26, purulent drainage was discovered around the gastrostomy tube. The gastrostomy site was repaired. Bentley showed some improvement on March 27.
At that point, McKowan went on vacation and Dr. Day took over Bentley’s care. On March 28, Day performed surgery to remove purulent material in the abdomen. On May 30, Bentley’s sister transferred her to University of Alabama Hospital in Birmingham, where she died.
Mr. Bentley filed a malpractice case. At trial, the plaintiff presented expert testimony from Dr. Kirchner, who testified that Bentley died because McKowan and Day did not properly manage her postoperative infection. Kirchner testified that the conduct of both physicians in managing the massive intra-abdominal infection fell below the legally imposed standard of care in Alabama. Testimony of the plaintiff’s expert was emphatic, stating that the defendants disregarded obvious signs of grave complications; omitted obvious, simple, effective measures for stopping the infection that eventually killed the patient; and repeatedly applied inappropriate measures virtually certain to exacerbate the infection.
The jury awarded Mr. Bentley $2 million in punitive damages. The defendants contended that the award was excessive. The defendants’ motion for a new trial was denied.
Poor Infection Control Technique
A jury verdict in the amount of $300,000 was awarded in Langley v. Michael
70 for damages arising from the amputation of the plaintiff’s thumb. Evidence that the orthopedic surgeon failed to deeply cleanse, irrigate, and debride the injured area of the patient’s thumb constituted proof of a departure from that degree of skill and learning ordinarily used by members of the medical profession and that this failure directly contributed to the patient’s loss of the distal portion of his thumb.
Preventing the Spread of Infection
A district court of appeals held in Gill v. Hartford Accident & Indemnity Co.
that the physician who performed surgery on a patient in the same room as the plaintiff should have known that the patient’s infection was highly contagious. The failure of the physician to undertake steps to prevent the spread of the infection to the plaintiff and his failure to warn the plaintiff led the court to find that hospital authorities and the plaintiff’s physician caused an unreasonable increase in the risk of injury. As a result, the plaintiff suffered injuries causally related to the negligence of the defendant.
The major risk areas of behavioral health professionals include commitment, electroshock, duty to warn, and suicide. Matters relating to admission, consent, and discharge are governed by statute in most states.
The recent emphasis on patient rights has had a major impact on the necessity to perform an appropriate assessment prior to commitment. The various state statutes often provide requirements granting an individual’s rights to legal counsel and other procedural safeguards (e.g., patient hotline) governing the admission, retention, and discharge of psychiatric patients.
Most states have enacted administrative procedures that must be followed. The various statutes often require that two physicians certify the need for commitment. Physicians who participate in the commitment of a patient should do so only after first examining the patient and reaching their own conclusions. Reliance on another’s examination and recommendation for commitment could give rise to a claim of malpractice. Commitment is generally necessary in those situations in which a person may be in substantial danger of injuring himself or herself or third persons.
In In re Detention of Meistrell,72 proof of dangerousness was found adequate to support an order for involuntary commitment. There was testimony that on two occasions, the patient jumped off a teeter-totter, causing his two small children to fall to the ground. A substantial risk of physical harm to others also was demonstrated by testimony that the patient threatened his wife’s ex-husband.
Involuntary Commitment Ordered
There was clear and convincing evidence in Luis A. v. Pilgrim Psychiatric Center
73 that the patient remained extremely psychotic and delusional. This was manifested by his own testimony denying that the victim of the crime in which he participated in 1990 was dead. Further, he denied his attempted suicide on two prior occasions, his substance abuse problems, and his mental illness. The evidence showed that the patient believed that the reason he was reincarcerated upon violating his probation in 2000 was a conspiracy by certain individuals against him rather than the fact that he tested positive for marijuana and violated his curfew. The evidence demonstrated that the patient would likely relapse to his substance abuse. He posed a substantial threat of physical harm to himself and others if release from the care and control of the facility was permitted. Proof was demonstrated that if released, he intended to reside with his elderly mother, who had a significant history of mental illness herself and was incapable of properly caring for him out of an institutional setting or of preventing deterioration in his mental health status. Expert medical opinion indicated that such would inevitably occur. The application to retain the respondent on an involuntary basis was granted.
Continuation of Commitment
In In re Todd,74 a psychiatrist filed a petition for additional detention of a patient previously ordered admitted to a state hospital for pretrial psychiatric examination. The circuit court, after hearing testimony from the appellant’s son, a social worker at the hospital, and the psychiatrist, ordered detention, and the detainee appealed. The episode that gave rise to the involuntary commitment occurred when the appellant threw eggs at a house and various businesses and also broke some windows at a house with a tire iron. She lightly bumped a police car and was charged with second-degree property damage. During her involuntary detention, she refused to take her medications, which were necessary because of her illness. The psychiatrist indicated his concern that, on release, she might harm her invalid husband. Detention was considered necessary until such time as drugs could control the detainee’s illness. The court of appeals held that the testimony of the psychiatrist established clear and convincing evidence to meet a required standard that the detainee’s actions presented risk of serious harm to herself or others.
Involuntary Commitment of Invalid
In In re Carl,75 a New York Supreme Court found a patient to be mentally ill and authorized his involuntary retention. On appeal, however, the New York Supreme Court, Appellate Division, held that the state had not shown by clear and convincing evidence that the patient’s instability caused him to pose a substantial threat of physical injury to himself or others. The examining physician’s testimony indicated that the patient did not pose a direct threat of physical harm to himself or others but that it was questionable whether he would be able to provide for the essentials of life. The patient testified that he was aware of food needs, of where to get food, and how he would pay for it. He indicated that he would not sleep outside and that he had a bed in a rooming house where he had been paying rent for 2 years.
Commitment by a Spouse
The plaintiff’s husband in Bencomo v. Morgan
filed a petition to have his wife declared incompetent. In a letter supporting the petition, the defendant physician, who had treated the wife 10 years previously, stated that she was badly in need of a psychiatric examination. The plaintiff wife attempted to sue the physician for libel and slander. The court held that the plaintiff had no cause for action because it was her husband who initiated the commitment procedures.
Commitment by a Parent
The U.S. Supreme Court in Parham v. J.R.
held that the risk of error inherent in a parental decision to have a child institutionalized for mental health care is sufficiently great that an inquiry should be made by a neutral fact finder to determine whether statutory requirements for admission are satisfied. Although a formal or quasiformal hearing is not required and an inquiry does not need to be conducted by a legally trained judicial or administrative officer, such inquiry must probe a child’s background using all available sources. It is necessary that a decision maker have the authority to refuse to admit a child who does not satisfy medical standards for admission. A child’s continuing need for commitment also must be reviewed periodically by a similarly independent procedure.
Patient Due-Process Rights
The principles of due process were violated in Birl v. Wallis
78 when an involuntarily committed patient was conditionally released and once again confined without notice and opportunity for a hearing. Remand was required to permit the drafting of reconfinement procedures that would protect the patient’s due-process rights.
In State v. Wenk,79 Wenk was charged with one count of attempt to entice a child for immoral purposes in October 1977. He entered a plea of not guilty. While awaiting trial and out on bail, Wenk was charged with three additional felonies involving an 11-year-old boy—one count of abduction and two counts of first-degree sexual assault. Ultimately, Wenk withdrew his pleas of not guilty but maintained a plea of not guilty by reason of a mental disorder. The trial court agreed with Wenk and found him not guilty as a result of his mental disorder. The trial court also found him dangerous and that he needed to be committed. Wenk successfully petitioned for conditional release in 1979. Five years later, Wenk waived his right to contest the motion seeking revocation of his conditional release after his probation agent instituted proceedings against him when it was discovered that Wenk failed to remain drug free and to abstain from contacting his ex-wife.
Wenk, at the age of 76, again petitioned the trial court seeking conditional release. As a result of his request, the trial court appointed two experts to examine Wenk: Palermo, a psychiatrist, and Smail, a psychologist. At the hearing, the state called Smail, who testified that Wenk could be released if certain conditions were placed on him. Also admitted into evidence were Palermo’s report and the report of Chapman, a clinical psychologist employed by the state institution. Both of these reports recommended that Wenk be released, but only if certain conditions were placed upon him. Following the close of testimony, the assistant district attorney stated that he was unsure whether he had met his burden of proof, but he urged the court to place conditions on Wenk if the trial court decided to release him.
The trial court, disagreeing with the doctors’ ultimate recommendations, found that Wenk was still dangerous. He had a long-standing substance abuse problem, and although Wenk had not abused drugs while he was confined, the trial court believed his drug relapse that occurred during his earlier conditional release indicated he still posed a danger to the community if released. As a result, the trial court, in denying the petition, found that the state had met its burden of proof to a reasonable certainty by evidence that is clear and convincing that Wenk still remained dangerous.
Wenk argued that all the expert witnesses who examined him opined that he could be released under certain conditions. The court remained not persuaded by his arguments. None of the doctors believed Wenk should be unconditionally released. Each recommended his release only under certain conditions. In Chapman’s report, the doctor noted that Wenk had been previously diagnosed as suffering from bipolar disorder, as well as inhalant dependence. Chapman reasoned that Wenk could be conditionally released because Wenk’s mental illness appeared to be in remission. With regard to Wenk’s addiction to toluene, a paint thinner, Chapman acknowledged that Wenk used this drug when he engaged in his sexual criminal conduct, but Chapman’s report contained the mistaken entry that during the 4 years Wenk was on conditional release, Wenk reported that he had no temptation to inhale. Wenk’s records clearly show that Wenk was recommitted, in part, as a result of his probation agent’s discovery of his drug addiction. Consequently, the doctor’s opinion that Wenk could be conditionally released was premised on his mistaken belief that Wenk had no difficulty with drugs during his previous release. Either Wenk minimized his toluene abuse when discussing his history with Chapman or Chapman failed to investigate the record.
Smail testified that Wenk’s inhalant dependence was in remission. He did, however, admit that all of Wenk’s criminal acts took place while he was under the influence of toluene. Smail’s recommendation in favor of conditional release was also based on Wenk’s statement to him that he had no personal concerns about resuming his abuse of inhalants. This self-serving opinion was not only overly optimistic but also, given Wenk’s past conduct, not borne out by his history.
Palermo’s report acknowledged that Wenk was abusing drugs when recommitted, but notwithstanding this history, Palermo recommended that Wenk be conditionally released, although he failed to set forth in his report any conditions that needed to be imposed on Wenk when he was released. This gaping hole in Palermo’s report could easily have caused the trial court to lack confidence in the doctor’s opinion.
The Wisconsin Court of Appeals determined that the record supported the trial court’s decision. The differences of opinion between the doctors and the trial court lay with their prediction of Wenk’s likely behavior when released. While the trial court acknowledged that predicting a person’s future behavior is a difficult task, it pointed out that the past predictions of the psychiatric experts were wrong. Further, the trial court stated that its prediction for Wenk’s future behavior was based on his past conduct, conduct that strongly suggested it was quite likely that Wenk would again abuse drugs, posing too great a danger to the community to release him.
A trial court decided that an insanity acquittee suffering from schizophrenia, paranoid type, in remission, failed to meet his burden of proving that he should be discharged, even though a psychiatric review board had recommended discharge. Two psychiatrists testified that as long as the patient was taking his medication, he was in no danger to himself or to others. The appeals court decision, based on the entire record, found that the acquittee had not proven by a preponderance of the evidence that there was a mechanism in place to provide for continuation of the required medication if he was released from supervision. The court considered the violent nature of the underlying crimes (e.g., attempt to commit sexual assault in the first degree and kidnapping in the first degree), which was precipitated by the acquittee’s mental illness. It was unclear whether the patient would continue to show the same progress after being discharged from the board’s supervision.80
Most states have laws and regulations governing the use of electroshock therapy and other treatments for psychiatric patients. Failure to abide by these statutory and regulatory guidelines may result in liability to the organization and treating physician.
Duty to Warn
In Tarasoff v. Regents of the University of California,
a former patient allegedly killed a third party after revealing his homicidal plans to his therapist. His therapist made no effort to inform the victim of the patient’s intentions. The California Supreme Court held that when a therapist determines or reasonably should determine that a patient poses a serious danger of violence to others, there is a duty to exercise reasonable care to protect the foreseeable victims and to warn them of any impending danger. Discharge of this duty also may include notifying the police or taking whatever steps are reasonably necessary under the circumstances.
Under Nebraska law, the relationship between a psychotherapist and a patient gives rise to an affirmative duty to initiate whatever precautions are reasonably necessary to protect the potential victims of a patient. This duty develops when a therapist knows or should know that a patient’s dangerous propensities present an unreasonable risk of harm to others.82
Exceptions to Duty to Warn
The Maryland Court of Special Appeals in Shaw v. Glickman
held that a plaintiff could not recover against a psychiatric team on the theory that they were negligent in failing to warn the plaintiff of the patient’s unstable and violent condition. The court held that making such a disclosure would violate statutes pertaining to privilege against disclosure of communications relating to treatment of mental or emotional disorders. The court found that a psychiatrist may have a duty to warn the potential victim of a dangerous mental patient’s intent to harm. However, the duty could be imposed only if the psychiatrist knew the identity of the prospective victim.
The psychiatrist in Currie v. United States
84 was found not to have had a duty to seek the involuntary commitment of a patient who evidenced homicidal tendencies. Absent control over the patient, the federal government could not be held liable for a murder that the patient committed at his former place of employment. The psychiatrist had warned the patient’s former employer and law enforcement officials that he could be dangerous.
There was no duty on the part of the hospital or treating psychiatrists in Sharpe v. South Carolina Department of Mental Health
85 to warn the general public of the potential danger that might result from a psychiatric patient’s release from a state hospital. There was no identifiable threat to a decedent who was shot by the patient approximately 2 months after the patient’s release from voluntary commitment under a plan of outpatient care. In addition, there was nothing in the record indicating that the former patient and the decedent had known each other prior to the patient’s release.
Organizations have a duty to exercise reasonable care to protect suicidal patients from foreseeable harm. This duty exists whether the patient is voluntarily admitted or involuntarily committed. The District Court in Abille v. United States
86 held that evidence supported a finding that the attending physician had not authorized a change in status of a suicidal patient to permit him to leave the ward without an escort. The nursing staff allowed him to leave the ward, and he found a window from which he jumped. This constituted a breach of the standard of due care under the law in Alaska, where the act or omission occurred.
The attendant in Fernandez v. State
87 left a patient alone in her room for 5 minutes when the patient appeared to be asleep. During the attendant’s absence, the patient injured herself in a repeated suicide attempt. The court found that even if the hospital assumed a duty to observe the patient continually, such a 5-minute absence would not constitute negligence. Therefore, the hospital could not be held liable for the patient’s injuries.
However, in a case in which a patient with a 14-year history of mental problems escaped from a hospital and committed suicide by jumping off a roof,88 the record showed that the patient was to be checked every 15 minutes. There was no evidence that such checks had been made. The appellate court ruled that the facts showed a prima facie case of negligence.
The New York Supreme Court, Appellate Division, in Eady v. Alter,89 held that an intern’s notation on the hospital record that the patient tried to jump out the window was sufficient to establish a prima facie case against the hospital. The patient succeeded in committing suicide by jumping out the window approximately 10 minutes after having been seen by the intern. Testimony had been given that the patient was restrained inadequately after the reported attempted suicide.
John Doe was at his father’s home seeking help in overcoming a heroin addiction. Doe was acting noticeably withdrawn and began vomiting. The plaintiff-father took his son to a local hospital to be evaluated for drug withdrawal. Doe tested negative for the presence of drugs in his blood and was discharged with instructions to attend a drug rehab program. The following day, the father became aware that his son had attempted suicide. He called the office of a drug rehab program for help and was advised to take Doe to the hospital’s crisis center.
The crisis center referred the father and his son to the hospital’s emergency department. The father explained to the emergency department nurse that his son had attempted suicide by cutting his wrist. Doe’s wrist was bandaged. The father and his son proceeded to the crisis center. Following an interview by a nurse and physician, the physician and nurse advised the father that his son was not suicidal but was “acting out” and looking for attention. Hospitalization was not offered, and the plaintiff was advised to follow up with a drug rehab program. Doe’s medical records contain no information regarding voluntary hospitalization being recommended or offered, nor do the records reflect that the son refused any offer of voluntary hospitalization.
They returned home, and Doe went to bed. When the father checked Doe at about 6:00 AM, he was gone. He telephoned the home of his ex-wife and was relieved to learn that his son was there. The father agreed to pick him up before the mother left for work. A few minutes later, the mother called and told the father that their son had left the house. The father immediately went to look for his son. While searching for his son, he noticed flashing lights on a nearby highway. When he went to see what was happening, he saw paramedics administering cardiopulmonary resuscitation to his son. The father was told that his son jumped in front of a dump truck and was killed.
A lawsuit was filed against the defendants alleging negligence, malpractice, and infliction of emotional distress. At trial, the physician testified that the deceased declined voluntary admission to the hospital. However, in a deposition prior to trial, he testified that he could not recall whether Doe had declined voluntary admission or not. On cross-examination, the physician conceded that he had never specifically recommended hospitalization to Doe.
The nurse testified that voluntary hospitalization was offered as an option to the plaintiff and his son but was not recommended. That option, if in fact offered, was not recorded in the hospital record.
The plaintiff’s medical experts testified that (1) because of Doe’s two suicide attempts, he needed hospitalization; (2) additional steps should have been taken prior to ruling out major depression; (3) in all probability, Doe would not have killed himself had he been hospitalized earlier and put on medications; and (4) Doe’s prior suicide attempts should have been taken more seriously. They opined that the failure to hospitalize Doe and keep him under close supervision was a deviation from accepted standards of medical practice. The defendants’ expert testified to the contrary but conceded on cross-examination that Doe had at least three high-risk factors for suicide.
The trial largely turned to a contest between the experts. The jury, by its verdict, accepted the opinions of the plaintiff’s experts. The court found, after a review of the record, no reason to disturb the jury’s verdict. The plaintiff, as administrator of the estate of his late son, recovered a verdict of $425,000 against the defendants for their failure to provide appropriate evaluation and hospitalization of Doe.90
The hospital system in Pinnacle Health System v. Dep’t of Public Welfare
was found to have been properly denied Medicaid reimbursement for providing inpatient psychiatric patient services that fell below the requisite standard. In this case, patients were not examined daily as required by a psychiatrist. Professionals who work in the healthcare setting recognize that this is not an uncommon occurrence. This case is typical of what has driven up healthcare costs in the United States.
0.12 PHYSICIAN–PATIENT RELATIONSHIP
The following suggestions can help improve the physician–patient relationship and decrease the probability of malpractice suits:
• Personalized treatment. A patient is more inclined to sue an impersonal physician than one with whom he or she has developed a good relationship.
• Conduct a thorough assessment/history and physical examination that includes a review of all body systems.
• Develop a problems list and comprehensive treatment plan that addresses the patient’s problems.
• Provide sufficient time and care to each patient. Take the time to explain treatment plans and follow-up care to the patient, his or her family, and other professionals who are caring for your patient. Provide a copy of each update to the patient.
• Request consultations when indicated and refer if necessary.
• Closely monitor the patient’s progress and, as necessary, make adjustments to the treatment plan as the patient’s condition warrants.
• Maintain timely, legible, complete, and accurate records.
• Do not make erasures.
• Do not guarantee treatment outcome.
• Provide for cross-coverage during days off.
• Do not overextend your practice.
• Avoid prescribing over the telephone.
• Do not become careless because you know the patient.
• Seek the advice of counsel should you suspect the possibility of a malpractice claim.
• Maintain the patient’s privacy rights.
The Court’s Decision
The Illinois Appellate Court held that the evidence was sufficient to support a determination that the defendant’s negligence caused the plaintiff’s pain and suffering.
Hospital Departments and Allied Professionals
© Monkey Business Images/Shutterstock
It’s Your Gavel…
DYING AT THE HOSPITAL’S DOOR … TROUBLING QUESTIONS
While communications were breaking down among a child’s parent, a
-1 dispatcher, and hospital personnel, the child’s condition was quickly deteriorating. Twelve hours later, the three-year-old girl was brain dead, and she expired three days later. Although there are several central issues involved in this story, the frustrating dialogue that took place is particularly important.
The 9-1-1 dispatcher answers the phone:
Dispatcher: 9-1-1; is this an emergency?
Parent: Yes, it’s an emergency. I need an ambulance. I have a
-year-old daughter that’s passed out on me.
Dispatcher: OK. Where do you need the ambulance?
Parent: I’m right in front of the emergency exit at Coral Springs Hospital.
Dispatcher: You’re right in front of the emergency exit?
Parent: Yes, that’s exactly where I am. And they won’t do a … thing in this place.
The dispatcher phones the hospital emergency department:
Dispatcher: There’s a guy that says he’s right outside your emergency exit. And he needs an ambulance. He says his 3-year-old daughter is passed out.
Hospital: This is a guy who wants to be seen quicker. We’re busy—so he figured if he called 9-1-1 he’d be seen quicker.
Dispatcher: Well, he’s saying he needs an ambulance right away. Is somebody going to go out there, or not?
Hospital: There’s nothing we can do.1
The parents were offered an out-of-court settlement totaling $
00,000. This tragedy might have been prevented if the patient had been screened and triaged by a person competent to determine the patient’s need for immediate care. Failure to assign triage responsibility to a competent individual can lead to lawsuits that involve not only the hospital, but also the supervisor who assigns responsibilities to unqualified staff members.
WHAT IS YOUR VERDICT?
Miami Herald, April 1
, by Ronnie Green. Copyright 1995 by Miami Herald. Reproduced with permission of Miami Herald in the format Textbook via Copyright Clearance Center.
The reader, upon completion of this chapter, will be able to:
• Describe the wide variety of legal issues that occur in the emergency department setting.
• Understand the purpose of the Emergency Medical Treatment and Active Labor Act.
• Describe a variety of negligent errors by various healthcare professionals that have applications to most caregivers.
• Describe the purpose of certification and licensure, and the reasons for revocation of licenses.
• Explain the importance of a multidisciplinary approach to patient care.
This chapter presents an overview of selected departments and healthcare professions. Although it describes a variety of legal issues, there is no intensive review of any specific department or profession. Many of the cases presented in this chapter could have been discussed in more than one chapter; they were placed here to illustrate that no healthcare profession is exempt from the long arm of the legal system. Healthcare professionals are held to the prevailing standard of care required in their profession, which includes proper assessments, reassessments, diagnosis, treatment, and follow-up care.
.1 EMERGENCY DEPARTMENT
Emergency departments, see
, are high-risk areas that tend to be a main source of lawsuits for hospitals. Results of the Harvard Medical Practice Study revealed that the hospital emergency department is “a real hot spot” for negligence.2 In this study,
0% of adverse events occurring in the emergency department were because of negligence. Hospital emergency departments, which are heavily used by patients as primary care clinics, are a major source of adverse events because of poor follow-up care. Suits that end up in a courtroom are small in number compared with the out-of-court settlements.
.7 Million Medical Malpractice Verdict in Florida
A Florida jury yesterday awarded a whopping $
0.1 million in punitive damages to a Tampa man who was left brain-damaged and disabled after hospital emergency room doctors misdiagnosed stroke symptoms for a headache. Including compensatory damages of $
6.7 million, the jury awarded Allan Navarro $
6.7 million. The verdict is the third largest U.S. medical malpractice award ever, according to data compiled by Bloomberg.
—Peter Lattman, The Wall Street Journal, October
Both federal and state regulations, as well as standards set by accrediting agencies, may be considered by the courts to establish the duty of hospital emergency departments to provide emergency care to those who present themselves with the need for such care. Hospitals, for example, under the Emergency Medical Treatment and Labor Act (EMTALA) are required to first provide stabilizing treatment and transfer to an appropriate healthcare facility when necessary.
© Monkey Business Images/Shutterstock
The courts recognize a general duty to care for all patients presenting themselves to hospital emergency departments. Not only must hospitals accept, treat, and transfer emergency department patients if such is necessary for the patients’ well-being, but they also must adhere to the standards of care they have set for themselves, as well as to national standards.
Emergency Medical Treatment and Active Labor Act
6, Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA), which forbids Medicare-participating hospitals from “dumping” patients out of emergency departments. The act provides that:
[i]n the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition … exists.3
The term emergency medical condition under EMTALA has been defined as:
(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part; or
(B) with respect to a pregnant woman who is having contractions, (i) that there is inadequate time to effect a safe transfer to another facility before delivery, or (ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.4
Under EMTALA, hospital emergency rooms are subject to two principal obligations, commonly referred to as (1) the appropriate medical screening requirement and (2) the stabilization requirement. The appropriate medical screening requirement obligates hospital emergency rooms to provide an appropriate medical screening to any individual seeking treatment to determine whether the individual has an emergency medical condition. If an emergency medical condition exists, the hospital is required to provide stabilization treatment before transferring the individual.
On May 4, 2000, Nolen, pregnant with triplets, arrived at the hospital for a labor check at the direction of her physician, Dr. Zann. She complained of cramping and a mucous discharge that she feared signaled the onset of labor. After an initial assessment was performed, Dr. Zann arrived and performed an examination. He concluded that Nolen’s lower uterine segment was consistent with what he expected from a normal pregnancy in this circumstance. Dr. Zann discharged Nolen from the hospital. He instructed Nolen to keep her scheduled appointment with her perinatologist, Dr. Scott, the next morning.
After leaving the hospital, Nolen testified at deposition that she began cramping. She made no effort to contact Dr. Zann or the hospital after this change in condition. When she reached Dr. Scott’s office the next morning, Nolen fully described the events of the previous day and her change in condition after leaving the hospital. Dr. Scott examined Nolen and sent her back to the hospital to suppress her preterm labor. Nolen was transferred on May 7 to Broward General Hospital where she went into preterm labor. Her first baby was stillborn, and her other two babies subsequently failed to survive. Nolen contended that the hospital did not have a standard written screening procedure or, alternatively, that the hospital did not follow its screening procedure, either of which, she contended, violated the EMTALA.
The record shows that Nolen received superior care from the hospital, primarily from her private physician, who provided care beyond the screening mandated by EMTALA. Nolen’s argument that the hospital was required to have a written screening procedure failed because a written procedure is not required by the terms of EMTALA.5
Stabilizing the Patient
Patients can be transferred after being medically screened by a physician, stabilized, and cleared for transfer by the receiving institution. Stabilized means “with respect to an emergency medical condition … to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or to occur during the transfer of the individual from a facility.”6
Failure to Stabilize Patient
The plaintiff in Huckaby v. East Ala. Med. Ctr.7 brought an action against the hospital alleging that the patient was transferred from the hospital’s emergency department before her condition was stabilized. The patient went to the hospital, suffering from a stroke. The complaint alleged that the patient’s condition was critical and materially deteriorating. The attending emergency department physician, Dr. Wheat, informed the patient’s family that she needed the services of a neurosurgeon but that the hospital had problems in getting neurosurgeons to accept patients. Upon the recommendation of Wheat, the patient was transferred to another hospital where she expired soon after arrival. The plaintiff alleged that Wheat did not inform the family regarding the risks of transfer and that the transfer of the patient in an unstable condition was the proximate cause of her death. Did the plaintiff have a cause of action under EMTALA?
The U.S. District Court held that the plaintiff stated a cause of action under EMTALA for which monetary relief could be granted. For the plaintiff to overcome the defendant’s motion to dismiss the case, the plaintiff had to demonstrate that, under EMTALA, the patient: (1) went to the defendant’s emergency department; (2) was diagnosed with an emergency medical condition; (3) was not provided with adequate screening; and (4) was discharged and transferred to another hospital before her emergency condition was stabilized. The plaintiff met this standard.
Failure to follow EMTALA can result in civil penalties. In addition, any individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the state in which the hospital is located.
In Burditt v. U.S. Department of Health and Human Services,8 EMTALA was violated by a physician when he ordered a woman with dangerously high blood pressure (210/
0) and in active labor with ruptured membranes to be transferred from the emergency department of one hospital to another hospital
0 miles away. The physician was assessed a penalty of $20,000. Dr. Louis Sullivan, secretary of the Department of Health and Human Services at that time, issued this statement:
This decision sends a message to physicians everywhere that they need to provide quality care to everyone in need of emergency treatment who comes to a hospital. This is a significant opinion and we are pleased with the result.9
The American Public Health Association, in filing an amicus curiae, advised the appeals court that if Burditt wants to ensure that he will never be asked to treat a patient not of his choosing, then he ought to vote with his feet by affiliating only with hospitals that do not accept Medicare funds or do not have an emergency department.
Screening and Discharge Appropriate
Fifteen-year-old Nydia, in Marshall v. East Carroll-Parish Hospital Service District,10 was brought by ambulance to the hospital emergency department because she “wouldn’t move” while at school after the bell rang. Upon her arrival, hospital personnel took her history and vital signs. She was unable to communicate verbally but cooperated with hospital staff. She was examined by Dr. Horowitz, who diagnosed Nydia as having a respiratory infection and discharged her. He informed Nydia’s mother, Ms. Marshall, that her daughter’s failure to communicate was of unknown etiology and advised her to continue administering the medications that had been prescribed by the family physician on the previous day and to return to the emergency department if her condition deteriorated. The complaint alleged that, later that same day, Nydia’s symptoms continued to worsen, and she was taken to the emergency department at a different hospital, where she was diagnosed as suffering from a cerebrovascular accident.
The action claimed that the hospital violated EMTALA by failing to provide Nydia with an appropriate medical screening examination and failing to stabilize her condition prior to discharge. The hospital moved for summary judgment and submitted supporting affidavits from Dr. Horowitz and a registered nurse who participated in Nydia’s treatment in the hospital’s emergency department. The district court granted summary judgment for the hospital on grounds that no material fact issues were in dispute.
Marshall, on appeal, claimed that hospital personnel knew that Nydia had an emergency medical condition and were concerned about the cursory examination provided by Dr. Horowitz and that Nydia should have been admitted to the hospital for observation of her unexplained altered mental status. Marshall argued that Dr. Horowitz committed malpractice by failing to accurately diagnose an emergency medical condition.
EMTALA was not intended to be used as a federal malpractice statute but, instead, was enacted to prevent patient dumping (the practice of refusing to treat patients unable to pay for care). An EMTALA-appropriate medical screening examination is not judged by its proficiency in accurately diagnosing a patient’s illness, but rather by whether it was performed equitably in comparison to other patients with similar symptoms. If a hospital provides an appropriate medical screening examination, it is not liable under EMTALA even if the physician who performed the examination made a misdiagnosis that could subject him or her and the employer to liability in a medical malpractice action. The affidavits submitted by the hospital stated that Nydia was given an appropriate medical screening examination that would have been performed on any other patient and that she was not diagnosed as having an emergency medical condition.
The court determined that the hospital was entitled to summary judgment as a matter of law because there was no material fact issue as to whether Dr. Horowitz conducted an appropriate medical screening examination. The stabilization and transfer provisions of EMTALA are triggered only after a hospital determines that an individual has an emergency medical condition. The hospital has no duty under EMTALA to stabilize a condition that was not diagnosed during an appropriate screening examination. The physician here did not diagnose an emergency situation; therefore, this case is not an EMTALA issue. However, an issue in malpractice under the state’s tort law can be raised.
Discharge Found Appropriate
In Holcomb v. Humana Med. Corp.,11 the administrator of the estate of a deceased patient, Smith, sued the hospital, alleging a violation of EMTALA. Smith entered the emergency department on May 4, 1990, a week after giving birth, with a complaint of a fever, aching, sore throat, and coughing. Both a physician’s assistant (PA) and a physician examined Smith. The examination revealed that Smith had a temperature of 104.3°F, a pulse of
6, respirations of
, and a blood pressure of 112/
. Diagnostic tests ordered included a white blood cell count, urine analysis, and chest X-ray. After reviewing Smith’s complaints and medical history, results of the physical examination, and test results, the physician diagnosed the patient as having a viral infection. The physician ordered Tylenol and intravenous (IV) fluids as treatment. Smith was maintained in the emergency department overnight. The physician conducted a second physical examination during the night. By morning, Smith’s vital signs had returned to normal. She was discharged with instructions for bed rest, fluids, and a request to return to the hospital if her condition worsened.
After returning home, Smith reported that she was feeling better but then took a turn for the worse and was admitted to Jackson Hospital on May 6, 1990. She was diagnosed with endometritis and subsequently died on May 9, 1990.
Was the patient inappropriately discharged from the emergency department under provisions of EMTALA? The U.S. District Court for the Middle District of Alabama held that there was no EMTALA violation. The patient was appropriately examined and screened. The care rendered was standard for any patient based on the complaints given. In addition, the plaintiff failed to demonstrate that an emergency condition existed at the time the patient was discharged on May 4.
Limited to Actions Against Hospital
The decedent in Ballachino v. Anders
12 went to the hospital on May
, 1990, with complaints of chest pain and repeated episodes of loss of consciousness. The physicians allegedly failed to provide an appropriate medical screening examination and failed to determine whether an emergency medical condition existed. The patient’s survivor and representative brought an action against the hospital and physicians, alleging violations of EMTALA and medical malpractice. EMTALA requires that a Medicare-provider hospital offer an appropriate medical screening examination to determine whether an emergency medical condition exists for any individual who presents to the emergency department seeking treatment. If the hospital determines that an emergency medical condition exists, then it must either stabilize the patient or provide for transfer of the patient to a facility capable of meeting the patient’s medical needs.
The United States District Court, W.D. New York held that there is no private right of action against the individual physicians under EMTALA. However, the representative’s complaint did state a claim against the hospital under EMTALA. The enforcement provision of EMTALA is explicitly limited to actions against a Medicare-participating hospital. Although the physicians were alleged to have acted in concert in rendering professional medical and surgical care and treatment to the decedent while at the hospital, the physicians importantly are nowhere alleged to have provided any emergency screening examination. The plaintiff clearly alleged that the defendants negligently failed to provide an appropriate medical screening examination and failed to determine whether an emergency medical condition existed for the decedent. The court was faced with the question of whether any emergency screening examination occurred at all. The plaintiff also alleged that the hospital failed in its stabilization and transfer procedures. The District Court determined that all of the allegations taken together stated an EMTALA claim against the hospital.
Wrong Record—Grave and Fatal Mistake
Dr. McManus had not realized that he had made a grave and fatal mistake. Dr. McManus had looked at the wrong chart. …
Terry Trahan, in Trahan v. McManus,13 was taken to the hospital after being injured in an automobile accident. Terry’s parents were informed about the accident and asked to come to the hospital. Mrs. Trahan drove to the hospital and consulted with Dr. McManus, the emergency department physician who treated Terry. Dr. McManus assured Mrs. Trahan that it would be all right to take her son home because there was nothing more that could be done for him at the hospital.
Upon ordering discharge, however, Dr. McManus had not realized that he had made a grave and fatal mistake. Dr. McManus had looked at the wrong chart in determining Terry’s status. Dr. McManus had looked at a chart that indicated that the patient’s vital signs were normal. In fact, the correct chart showed that Terry had three broken ribs as a result of the accident. His blood pressure was 90/
when he was admitted to the emergency department. Forty-five minutes after being admitted, Terry’s blood pressure had dropped to 80/
, and his respiration rate had doubled. Terry’s vital signs clearly indicated that he was suffering from internal hemorrhaging.
In the 7 hours following his discharge, Terry’s condition continued to worsen. Terry complained to his parents about severe pain. He could not turn from his back to his side without the aid of his father. Several hours after being brought home from the hospital, Mr. Trahan noticed that Terry’s abdomen was swelling. Mrs. Trahan immediately called the hospital. Mr. Trahan asked Terry if he wanted to sit up. Terry replied, “Well, we can try.” Those were Terry’s final words. Terry slumped in his father’s arms and his head fell forward. When Mr. Trahan attempted to lift Terry’s head, Terry’s face was white. Mr. Trahan immediately laid his son down on the bed, realizing for the first time that his son was not breathing and had no pulse. He attempted CPR as Mrs. Trahan called for an ambulance. Mr. Trahan continued CPR until the ambulance arrived a few minutes later. Terry was pronounced dead on arrival at the hospital.
Subsequently, during a medical review panel proceeding in which the Trahans participated, Dr. McManus admitted liability by tendering his $100,000 limit of liability, pursuant to the Medical Malpractice Act.
A jury returned a verdict absolving Dr. McManus of any liability, finding that Terry’s injuries would have occurred despite the physician’s failure to use reasonable care in his treatment of Terry. The Trahans appealed. On appeal, the jury’s determination was found to be clearly erroneous when it concluded that the physician’s actions were not the cause-in-fact of Terry’s death. The record is replete with testimony, including Dr. McManus’s own admissions, that he acted negligently when he discharged Terry, that his actions led to Terry’s death, and that there was treatment available that could have made a difference.
Duty to Contact On-Call Physician
Hospitals are expected to notify specialty on-call physicians when their particular skills are required in the emergency department. A physician who is on call and fails to respond to a request to attend a patient can be liable for injuries suffered by the patient because of his or her failure to respond.
Failure to Contact On-Call Physician
In Thomas v. Corso,14 a patient had been brought to the hospital emergency department after he was struck by a car. A physician did not attend to him even though he had dangerously low blood pressure and was in shock. There was some telephone contact between the nurse in the emergency department and the physician who was providing on-call coverage. The physician did not act upon the hospital’s call for assistance until the patient was close to death. Expert testimony was not necessary to establish what common sense made evident—the patient struck by a car may have suffered internal injuries and should have been evaluated and treated by a physician. Lack of attention in such cases is not reasonable care by any standard. The concurrent negligence of the nurse, who failed to contact the on-call physician after the patient’s condition worsened, did not relieve the physician of liability for his failure to respond to his on-call duty. Because of the nurse’s negligence, the hospital is liable under the doctrine of respondeat superior.
Failure to Respond to Call
Treatment rendered by hospitals is expected to be commensurate with that available in the same or similar communities or in hospitals generally. In Fjerstad v. Knutson,15 the South Dakota Supreme Court found that a hospital could be held liable for the failure of an on-call physician to respond to a call from the emergency department. An intern, who attempted to contact the on-call physician and was unable to do so for 3.5 hours, treated and discharged the patient. The hospital was responsible for assigning on-call physicians and ensuring that they would be available when called. The patient died during the night in a motel room as a result of asphyxia resulting from a swelling of the larynx, tonsils, and epiglottis that blocked the trachea. Testimony indicated that the emergency department’s on-call physician was to be available for consultation and was assigned that duty by the hospital. Expert testimony also was offered that someone with the decedent’s symptoms should have been hospitalized and that such care could have saved the decedent’s life. The jury believed that an experienced physician would have taken the necessary steps to save the decedent’s life.
Timely Response Required
Not only are hospitals required to care for emergency patients, but they also are required to do so in a timely fashion. In Marks v. Mandel,16 a Florida trial court was found to have erred in directing a verdict against the plaintiff. It was decided that the relevant inquiry in this case was whether the hospital and the supervisor should bear ultimate responsibility for failure of the specialty on-call system to function properly. Jury issues had been raised by evidence that the standard for on-call systems was to have a specialist attending the patient within a reasonable period of being called.
Notice of Inability to Respond to Call
In Millard v. Corrado,17 the Missouri Appellate Court found that on-call physicians owe a duty to provide reasonable notice when they will be unavailable to respond to calls. Physicians who cannot fulfill their on-call responsibilities must provide notice as soon as practicable once they learn of the circumstances that will render them unavailable. Imposing a duty on on-call physicians to notify hospital staff of their unavailability does not place an unreasonable burden. In this case, a mere telephone call would have significantly reduced the 4-hour period between an accident and life-saving surgery. Whatever slight inconvenience may be associated with notifying the hospital of the on-call physician’s availability is trivial when compared with the substantial risk to patients.
Objectives of Emergency Care
The objectives of emergency care are the same regardless of severity. No matter how seemingly trivial the complaint, each patient must be examined. Treatment must begin as rapidly as possible, function is to be maintained or restored, scarring and deformity minimized. Every patient must be treated regardless of ability to pay.
As the Sixth Circuit points out, there are many reasons other than indigence that might lead a hospital to give less than standard attention to a person who arrives at the emergency room doors. These might include: prejudice against the race, sex, or ethnic group of the patient; distaste for the patient’s condition (e.g., acquired immune deficiency syndrome [AIDS] patients); personal dislike or antagonism between medical personnel and the patient; disapproval of the patient’s occupation; or political or cultural opposition. If a hospital refuses treatment to persons for any of these reasons, or gives cursory treatment, the evil inflicted would be quite akin to that discussed by Congress in the legislative history, and the patient would fall squarely in the statutory language.
Patient Leaves Emergency Department Without Notice
The patient and her sister became upset with the care offered, left the hospital, and went home without proper discharge. The patient died 2 days later at home. The county coroner’s office initiated a postmortem examination and determined the patient died from meningoencephalitis. The patient made a conscious decision to leave the hospital on her own accord without the knowledge or permission of the hospital. She did not tell the doctors, nurses, or anyone else that she was leaving the emergency room; she just left without informing anyone.
In a wrongful death medical malpractice action alleging negligence, the trial court properly granted the hospital summary judgment because under Ohio law, an emergency room nurse has no duty to interfere with a patient who refuses treatment and decides to leave the emergency department without notifying hospital staff.19
Failure to Admit
Roy went to the emergency department complaining of chest pains. The attending physician, Dr. Gupta, upon examination, determined that Roy exhibited normal vital signs. Gupta performed an electrocardiogram that showed ischemic changes indicating a lack of oxygen to the heart tissue. He applied a transdermal nitroglycerin patch and gave her a prescription for nitroglycerin. After monitoring her progress, he sent her home. Several hours later, she returned to the emergency department, experiencing more chest pains. She was admitted to the hospital, and it was determined that she was having a heart attack. Three days later, Roy died of a massive myocardial infarction.
Gupta was found negligent in failing to hospitalize Roy or failing to inform her of the serious nature of her illness. The trial court found that had Roy been hospitalized on her first visit, her chances of survival would have been increased. On appeal, the Louisiana Court of Appeal held that Gupta was negligent by failing to advise Roy that she should be hospitalized for chest pains. All of the medical expert witnesses, except Dr. Kilpatrick, a defense witness, testified that Roy should have been admitted. Kilpatrick testified that such a decision varied greatly among physicians. The trial court disregarded his testimony because of his hostile responses to questioning.
The trial judge was not convinced by Gupta’s explanation of why Roy was not hospitalized. He focused on Gupta’s failure to have X-rays taken during the first visit, which might have allowed him to determine whether the ischemic changes were a result of her hypertension medication or indicated the beginning of a heart attack. The relative simplicity of the technique and its obvious availability lent credence to the trial judge’s belief that the requisite attention was not paid to Roy’s complaints. The law does not require proof that proper treatment would have been the difference between Roy’s living or dying: It requires only proof that proper treatment would have increased her chances of survival.20
Documentation Sparse and Contradictory
An ambulance team found
-year-old Feeney intoxicated and sitting on a street corner in South Boston. Feeney admitted to alcohol abuse but denied that he used drugs. He was physically and verbally combative, and he had trouble walking and speaking intelligibly. His condition interfered with conducting an examination, and he was transported by ambulance to the hospital.
Documentation at the hospital between 10:
PM and 11:
PM was sparse and contradictory. The minimum standard for nursing care required monitoring the patient’s respiratory rate every 15 minutes. It was doubtful that this occurred. This monitoring would have more than likely permitted the nursing staff to observe changes in the patient’s breathing patterns and/or the onset of respiratory arrest. The emergency department physician failed to evaluate the patient and to initiate care within the first few minutes of Feeney’s entry into the emergency facility. The emergency physician had an obligation to determine who was waiting for physician care and how critical the need was for that care. Had the standards been maintained, respiratory arrest might have been averted. According to the autopsy report, respiratory arrest was the sole cause of death.
The failure to provide adequate care rationally could be attributed to the staff nurse assigned to the area in which the patient lay, as well as to the physicians in charge. The hospital was implicated on the basis of the acts or omissions of its staff.21
Telephone Medicine Can Be Costly
The diagnosis and treatment of patients by telephone can be costly. As noted in Futch v. Attwood,
the record shows that on the morning of February
, 1990, Lauren, a 4-year-old diabetic child, awoke her mother, Wanda. She had vomited two or three times, and her glucose reading was high. Wanda administered Lauren’s morning insulin and intended to feed her a light breakfast before bringing her to see Dr. Attwood, a pediatrician, at about 9:45 AM. According to the plaintiff, Dr. Attwood did not check Lauren’s blood sugar level or her urine to determine whether ketones were present. If Dr. Atwood had done so, Lauren’s condition could have been quickly corrected by the simple administration of insulin. Instead of administering insulin, however, Dr. Attwood prescribed the use of Phenergan suppositories to address Lauren’s symptoms. Lauren’s symptoms of nausea continued, and she was taken to the hospital emergency department. Hospital personnel contacted Attwood. Attwood returned the call and again prescribed a Phenergan injection. Attwood did not go to the hospital and had not been given Lauren’s vital signs when he suggested such an injection; furthermore, he failed to order any blood or urine tests.
Wanda returned home with Lauren at approximately 8:00 PM and put her to bed, waking her around midnight to administer the prescribed medication. Lauren woke but went back to sleep. Early the next morning, Wanda awoke and found Lauren with labored breathing. While attempting to wake up the 4-year-old, the only responses, according to the plaintiff’s brief, were “huh” followed by moaning. Wanda telephoned Attwood and informed him of her daughter’s far worsened condition. Attwood admitted Lauren to the hospital at 6:30 AM that morning.
Hospital records revealed that Lauren’s glucose level was 507 at the time of admission, with her blood acid revealing diabetic ketoacidosis. At approximately 9:13 AM, Lauren went into respiratory arrest as a result of her brain swelling with rupturing into the opening at the base of her neck. Lauren was immediately transported by helicopter to Children’s Hospital in New Orleans and diagnosed with ketoacidotic coma, cerebral edema, and bilateral pulmonary edema. She was pronounced dead at 5:07 PM on March 2, 1990.
Lauren and her mother were virtually inseparable, except when Wanda was at school. All of this changed in Lauren’s last few days when she was rushed to New Orleans. During Lauren’s 2.5 days of illness, every moment seemed worse than the previous. The mother witnessed her daughter’s decline in health, and her protracted wait was punctuated only by various traumatic episodes: Lauren’s respiratory intubation; her respiratory failure and consequent code blue; numerous medical staff scurrying in and out to see Lauren behind doors closed to Wanda; and, finally, Wanda’s being asked to consider whether she would prefer to “pull the plug” on her daughter or to watch her linger indefinitely. Confronted with this dilemma, the young mother opted not to punish her daughter with more torment. She decided to let her go and did. For Wanda, the period following Lauren’s death has been marked by the inevitable sense of loss of a daughter and by the guilt of a mother whose unrelenting loss compels her to ask what she might have done differently to save her child’s life.
The trial court allocated $98,000 for the conscious pain and suffering. The defendant complained that the award of $98,000 was excessive. On appeal, the appellate court could not find that the trial court had erred in concluding what sum was fair.
Improving Emergency Department Patient Care
Emergency department care can be improved and lawsuits minimized by:
• treating each patient courteously and promptly, regardless of ability to pay;
• providing adequate staff to care for patients;
• requiring timely response by on-call physicians;
• not taking lightly any patient’s complaint;
• triaging, assessing, and treating seriously ill patients first;
• communicating with the patient and family to ensure a complete and accurate picture of the patient’s symptoms and complaints are obtained;
• providing an appropriate examination of the patient based on the presenting complaint(s) and symptoms (failure to do this may be the single most common and sometimes fatal mistake in emergency departments);
• obtaining patient consent for procedures when possible;
• providing a mechanism for obtaining consultations when necessary;
• requiring that hospitals determine what types of patients and levels of care they can safely address;
• knowing when to admit or stabilize and transfer a patient;
• maintaining thorough and complete medical records for each patient treated;
• ensuring that each patient’s records treated in other settings within the organization (e.g., ambulatory care settings) are readily available;
• establishing criteria for admission and discharge;
• ensuring all patients are assessed and treated by a physician prior to discharge;
• ensuring that patient education is provided in the emergency department prior to discharging each patient;
• ensuring all documentation is completed prior to each patient’s discharge;
• providing a procedure for reading X-rays and other imaging studies when there is no radiologist readily available;
• instituting a preventive maintenance program for emergency department equipment;
• determining which diagnoses can be safely addressed within the organization;
• assuring open lines of communications between hospitals and emergency medical services personnel when addressing transport and care issues;
• making appropriate arrangements, when required, for transfer;
• providing continuing education programs for all staff members; and
• requiring mandatory administrative rounds to the emergency department by the risk manager, medical director, chief nursing officer, and chief executive officer.
Emergency Rooms Vital to Public Safety
McBride, in Simmons v. Tuomey Regional Medical Center,
was involved in an accident while driving his moped. Upon learning of the accident, Simmons, McBride’s daughter, rushed to the scene, where she found emergency services personnel attending to an injury to the back of her father’s head. McBride was taken to Tuomey where Simmons signed an admission form for her father. The admission form contained the following provision:
The Physicians Practicing in this Emergency Room are not Employees of the Tuomey Regional Medical Center. They are Independent Physicians, as are All Physicians Practicing in this Hospital.
While in Tuomey’s emergency department, Drs. Cooper and Anderson examined McBride. Despite McBride’s confused state, the physicians decided to treat his contusions and release him from the hospital. The physicians, apparently attributing McBride’s confusion to intoxication, did not treat his head injury.
The next day, McBride returned to Tuomey where his head injury was diagnosed as a subdural hematoma. Ultimately, McBride was transported to Richland Memorial Hospital. Approximately 6 weeks later, McBride died of complications from the hematoma.
When Simmons brought suit, Tuomey moved for summary judgment by alleging that it was not liable because the physicians were independent contractors. Tuomey relied on its June 1987 contract with Coastal Physicians Services, which set forth the procedures by which Coastal would provide emergency department physicians to Tuomey. The carefully worded contract referred numerous times to physicians as independent contractors and stated that Tuomey agreed not to exercise any control over the means, manner, or methods by which any physician supplied by Coastal carries out his duties. The trial court accorded great weight to the Coastal–Tuomey contract when it granted Tuomey’s motion for summary judgment. Simmons appealed, arguing that the trial court erred in granting summary judgment on the issues of actual agency, apparent agency, and nondelegable duty.
The operation of emergency departments is such an important activity to the community that hospitals should be liable for the negligence of emergency department caregivers. Few things are more comforting in today’s society than knowing that immediate medical care is available around the clock at any hospital. As the Texas Court of Appeals astutely observed:
Emergency rooms are aptly named and vital to public safety. There exists no other place to find immediate medical care. The dynamics that drive paying patients to a hospital’s emergency rooms are known well. Either a sudden injury occurs, a child breaks his arm or an individual suffers a heart attack, or an existing medical condition worsens, a diabetic lapses into a coma, demanding immediate medical attention at the nearest emergency room. The catch phrase in legal nomenclature, “time is of the essence,” takes on real meaning. Generally, one cannot choose to pass by the nearest emergency room, and after arrival, it would be improvident to depart in hope of finding one that provides services through employees rather than independent contractors. The patient is there and must rely on the services available and agree to pay the premium charged for those services.
The public not only relies on the medical care rendered by emergency departments, but also considers the hospital as a single entity providing all of its medical services. A set of commentators observed:
[T]he hospital itself has come to be perceived as the provider of medical services. According to this view, patients come to the hospital to be cured, and the doctors who practice there are the hospital’s instrumentalities, regardless of the nature of the private arrangements between the hospital and the physician. Whether or not this perception is accurate seemingly matters little when weighed against the momentum of changing public perception and attendant public policy.
Public reliance and public perceptions, as well as the regulations imposed on hospitals, have created an absolute duty for hospitals to provide competent medical care in their emergency departments. Hospitals contributed to the shift in public perception through commercial advertisements. By actively soliciting business, hospitals effectively removed themselves from the sterile world of altruistic agencies. The Alaska Supreme Court, the first American court to recognize a nondelegable duty in the hospital context, wrote:
Not only is [finding a nondelegable duty] consonant with the public perception of the hospital as a multifaceted health care facility responsible for the quality of medical care and treatment rendered, it also treats tort liability in the medical arena in a manner that is consistent with the commercialization of American medicine.26
The real effect of finding a duty to be nondelegable is to render not the duty, but the liability, not delegable; the person subject to a nondelegable duty is certainly free to delegate the duty, but will be liable to third parties for any negligence of the delegatee, regardless of any fault on the part of the delegator.
Given the cumulative public policies surrounding the operation of emergency departments and the legal requirement that hospitals provide emergency services, hospitals must be accountable in tort for the actions of caregivers working in their emergency departments. The court in this case agreed with a New York court, which wrote:
In this Court’s opinion it is public policy, and not traditional rules of the law of agency or the law of torts, which should underlie the decision to hold hospitals liable for malpractice which occurs in their emergency rooms. In this regard the observation of former U.S. Supreme Court Justice Oliver Wendell Holmes is apt: “The true grounds of decision are consideration of policy and of social advantage, and it is vain to suppose that solutions can be attained merely by logic and the general propositions of law which nobody disputes. Propositions as to public policy rarely are unanimously accepted, and still more rarely, if ever, are capable of unanswerable proof.”
The appeals court in Tuomey held that hospitals have a nondelegable duty to render competent service to the patients of their emergency departments. The trial court’s grant of summary judgment was reversed, and the case was remanded for further proceedings.
Legislation in many states imposes a duty on hospitals to provide emergency care. The statutes implicitly, and sometimes explicitly, require hospitals to provide some degree of emergency service.
If the public is aware that a hospital furnishes emergency services and relies on that knowledge, the hospital has a duty to provide those services to the public. Two Mexican children, burned in a fire at home, were refused admission or first aid by a local hospital. A lawsuit was filed claiming that additional injury occurred as a result of the failure to render care.28 The trial court dismissed the suit. On appeal, the Arizona Court of Appeals found the defendants liable, claiming that it was the custom of the hospital to render aid in such a case. The Arizona Supreme Court, in finding the defendants liable, reasoned that state statutes and licensing regulations mandate that a hospital may not deny a patient emergency care.
State statutes, such as the New York State Emergency Medical Services Act, provide that every hospital shall admit persons in need of immediate hospitalization. Any licensed medical practitioner who refuses to treat a person arriving at a general hospital for emergency medical treatment will be guilty of a misdemeanor and subject to up to 1 year in prison and a fine. Emergency medical technicians, paramedics, and ambulance drivers are expected to report any refusals by hospitals to treat emergency patients. Patients may be transferred only after they have been stabilized if it is deemed by the attending physician to be in the best interest of the patient.
A chiropractor is required to exercise the same degree of care, judgment, and skill exercised by other reasonable chiropractors under like or similar circumstances. He or she has a duty to determine whether a patient is treatable through chiropractic means and to refrain from chiropractic treatment when a reasonable chiropractor would or should be aware that a patient’s condition will not respond to chiropractic treatment. Failure to conform to the standard of care can result in liability for any injuries suffered.
The chief medical officer of the Nebraska Department of Health and Human Services Regulation and Licensure entered an order revoking Poor’s license to practice as a chiropractor in the state of Nebraska.
Poor engaged in a conspiracy to manufacture and distribute a misbranded substance, and he introduced into interstate commerce misbranded and adulterated drugs with the intent to defraud and mislead. He was arrested for driving under the influence and was convicted of that offense. In addition, Poor knowingly possessed cocaine. He conceded that these factual determinations were understood as beyond dispute.
Elizabeth Haran Caplan knew she was in trouble seconds after a chiropractor in Oklahoma City manipulated her neck. The room got dark and she felt dizzy. Because of her years of service as a combat medic in Kosovo and Somalia, she knew what was happening and yelled, “Stop. I’m having a stroke.”
• • •
She had gotten treatment many times before and doesn’t recall ever being given a consent form. Given her medical background, she says she never would have gone ahead with the treatment if she’d read that there was an even rare risk of a stroke. “I would have read it and left,” she said.
—Susan Berger, The Washington Post, January 7, 201
Both the district and appellate courts found that Poor’s conduct was clearly immoral. The appellate court stated that Poor’s denial now, after taking advantage of a plea bargain, that he committed any of the acts he admitted to in the U.S. District Court is disturbing and is not consistent with the integrity expected by persons engaged in a professional occupation.
The Supreme Court of Nebraska, as a result of the seriousness of Poor’s felony conviction and its underlying conduct, his subsequent lack of candor with respect to that conduct, and his lack of sound judgment demonstrated by his driving under the influence conviction, concluded that revocation of Poor’s license was an appropriate sanction.
Dental malpractice cases are generally related to patients who suffer from complications of a dental procedure. They can involve the improper treatment of dental infections or complications from the improper administration of anesthesia. Complications can also include damage to the nerves of the lower jaw, face, chin, lips, and tongue. Injuries can involve high-speed drills damaging the tongue and can result in permanent loss of sensation or taste.
Drill Bit Left in Tooth
The patient, in Mazor v. Isaacman,
visited the defendantdentist in August 1997 for routine root canal surgery. After the surgery, the patient began experiencing constant pain in the tooth in which the root canal was performed. The dentist told the patient that such pain was ordinarily felt after root canal surgery. In February 1999, the patient visited another dentist, who discovered that a piece of a drill bit had been left inside the patient’s tooth during the previous root canal. The patient filed a lawsuit against the defendant-dentist for dental malpractice. The defendant-dentist filed a motion to dismiss, arguing that the patient did not bring the claim within the 1-year statute of limitations. This motion was granted, and the patient appealed. The Tennessee Court of Appeals reversed the finding, holding that the patient had 1 year from the time she discovered or should have discovered the foreign object in which to file her lawsuit.
Tennessee Code Annotated § 29-26-116(a)(4) (2000) states that “where a foreign object has been negligently left in a patient’s body … the action shall be commenced within one (1) year after the alleged injury or wrongful act is discovered or should have been discovered.” This statute has been interpreted to require only that the plaintiff bring the action within 1 year after the foreign object was discovered or should have been discovered.
Failure to Refer
Dr. Smith told O’Neal that tooth number 14, an upper left molar, should be extracted. O’Neal advised Smith that another dentist warned her that tooth number 14 should not be pulled because it was embedded in the sinus. Smith responded that all of her top teeth were in the sinus and that extraction was no problem. O’Neal relented to Smith’s judgment, and tooth number 14 was extracted. Complications developed in the extraction process, resulting in an oral antral perforation of the sinus cavity wall. Four days after the extraction, Smith began root canal work, even though the antral opening wound was not healed. Three weeks after the extraction, a tissue mass developed in the tooth socket and the patient was referred to Dr. Herbert, an oral surgeon.
Herbert testified that the degree of infection inhibited proper healing and closure of the extraction site. After several more months, O’Neal was referred to Dr. Berman, an ear, nose, and throat specialist. Because of the continual deterioration, Berman performed a surgical procedure that sealed the extraction site. The surgery required hospitalization.
O’Neal brought a malpractice action against Smith.32 The trial court entered judgment in favor of O’Neal. Smith appealed, arguing that the evidence was factually insufficient to support the judgment.
An expert witness testified that Smith was negligent for not referring the patient to an oral surgeon for the necessary extraction because of the known risks of roots embedded in the sinus floor. Smith was also negligent for not referring the patient to a specialist when the antral perforation first occurred and later by not referring her to a specialist when the fistula and the infection manifested. Expert testimony was found sufficient to support a jury finding that the defendant was negligent in the treatment of his patient.
Lack of Consent
The plaintiff in Gaskin v. Goldwasser
brought a suit against an oral surgeon alleging dental malpractice. The oral surgeon had removed 19 of the teeth remaining in the plaintiff’s mouth. The defendant admitted that 5 of the 19 teeth were removed without the consent of the patient. The circuit court entered a judgment for the plaintiff on a jury verdict for damages resulting from the extraction of the five lower teeth. On appeal, the appellate court held that the patient was entitled to have the allegation of willful and wanton misconduct and battery for unauthorized removal of the lower teeth submitted to the jury. The case was remanded for a new trial.
Failure to Prescribe Antibiotics
In Pasquale v. Miller,
the plaintiff brought a suit against the defendant, Dr. Miller, for dental malpractice. Miller treated the plaintiff for swollen gums. He removed tissue from the patient’s gums and used sutures to control the bleeding. Although it was common practice to prescribe antibiotics prior to or following gum surgery, Miller failed to prescribe antibiotics in either case. The following May, after the plaintiff experienced a persistent fever, she was diagnosed as having contracted subacute bacterial endocarditis. The plaintiff was treated in the hospital for nearly a month. Miller claimed that the bacterial infection could have resulted from a number of causes. The trial court, upon a jury verdict, found for the plaintiff. An appeals court held that the evidence supported a finding of causation.
The plaintiff’s expert witnesses testified that her endocarditis was related to the dental surgery and that one of the risks of not prescribing an antibiotic is that bacteria can flow through the bloodstream to the heart. The jury rejected testimony from Miller that endocarditis could have been caused by something other than failure to administer antibiotics prior to or following gum surgery.
Failure to Follow Sterile Technique
In Kirschner v. Mills,
there was sufficient evidence to support a charge that the dentist failed to wear protective gloves while performing a medical examination. That charge was supported by testimony of the patient, whom a hearing panel found to be credible, that the dentist did not wear gloves during the examination. The violation of accepted practice was also supported by the testimony of the dentist’s own expert, a fellow dentist, who opined that it was necessary to wear gloves any time you put your hands on a patient.
Practicing Outside Scope of Competency
Brown, in Brown v. Belinfante,
sued Dr. Belinfante and the Atlanta Orthofacial Surgicenter, LLC, after Belinfante performed several elective cosmetic procedures including a face lift, eyelid revision, and facial laser resurfacing. Belinfante is not a physician. He is licensed to practice dentistry in Georgia and was employed by the Surgicenter. Brown claims that after the cosmetic procedures, she could not close her eyes completely, developed chronic bilateral eye infections, and required remedial corrective surgery. Among other things, Brown alleged that Belinfante’s performance of the cosmetic procedures constituted negligence per se because he exceeded the scope of the practice of dentistry.
The Georgia Court of Appeals held that cosmetic procedures of this nature do not fall within Georgia statutes. The primary purposes of the Georgia Dental Act are to define and regulate the practice of dentistry. The statute limits the scope of the practice of dentistry. Such limitation protects the health and welfare of patients who submit themselves to the care of dentists by guarding against injuries caused by inadequate care or by unauthorized individuals. Brown falls within that class of persons that the statute was intended to protect, and the harm complained of was of the type the statute was intended to guard against. In performing the elective cosmetic procedures, Belinfante violated the Dental Practice Act by exceeding the statutory limits of the scope of dentistry and, therefore, committed negligence per se.
Failure to Supervise Dental Assistant
The plaintiff in Hickman v. Sexton Dental Clinic
brought a malpractice action against a dental clinic for a serious cut under her tongue. The dental assistant, without being supervised by a dentist, placed a sharp object into the patient’s mouth, cutting her tongue while taking impressions for dentures. The court of common pleas entered a judgment on a jury verdict in favor of the plaintiff, and the clinic appealed. The court of appeals held that evidence presented was sufficient to infer without the aid of expert testimony that there was a breach of duty to the patient. The testimony of Dr. Tepper, the clinic dentist, was found pertinent to the issue of the common knowledge exception in which the evidence permits the jury to recognize breach of duty without the aid of expert testimony. Tepper presented the following testimony regarding denture impressions:
Q. You also stated that you have taken, I believe, thousands?
A. Probably more than that.
Q. Of impressions?
A. Yes, sir.
Q. This never happened before?
A. No, sir, not a laceration.
Q. Would it be safe and accurate to say that if someone’s mouth were to be cut during the impression process, someone did something wrong?
A. Yes, sir.
Dental Hygienist Administers Nitrous Oxide
A dental hygienist alleged that her employer-defendant allowed dental hygienists to administer nitrous oxide to patients. Under New York state law, dental hygienists may not administer nitrous oxide. The Department of Education’s Office of Professional Discipline investigated the complaint by using an undercover investigator. The investigator made an appointment for teeth cleaning. At the time of her appointment, she requested that nitrous oxide be administered. Agreeing to the investigator’s request, the dental hygienist administered the nitrous oxide. There were no notations in the patient’s chart indicating that she had been administered nitrous oxide.
A hearing panel found the dental hygienist guilty of administering nitrous oxide without being properly licensed. In addition, the hearing panel found that the dental hygienist had failed to accurately record in the patient’s chart that she administered nitrous oxide.
The New York Supreme Court, Appellate Division, held that the investigator’s report provided sufficient evidence to support the hearing panel’s determination. There is adequate evidence in the record to support a finding that the dentist’s conduct was such that it could reasonably be said that he permitted the dental hygienist to perform acts that she was not licensed to perform.
An organization must provide for clinical laboratory services to meet the needs of its patients. Each healthcare organization is responsible for the quality and timeliness of the services provided. Because it is often necessary to contract out certain tests, the healthcare organization should be confident that it is contracting for services with a reputable licensed laboratory.
Georgetown U. Hospital Shuts Lab After Problems with Cancer Tests
Georgetown University Hospital has shut down a lab that performs genetic analysis for breast cancer patients and has had 2
women’s tissue samples independently retested while federal officials investigate procedures at the lab.
Hospital officials said the process ultimately identified two women who have been falsely told they did not have a particular aggressive form of breast cancer, known as HER2 positive.
• • •
… the hospital learned early this year that lab staff members were not using proper temperature, timing and tissue–embedding methods in processing samples. That caused the lab to fail quality control test for HER2 he said.
—Lena H. Sun, The Washington Post, August 6, 2010
An organization’s laboratory provides data that are vital to a patient’s treatment. Among its many functions, the laboratory monitors therapeutic ranges; measures blood levels for toxicity; places and monitors instrumentation on patient units; provides education for the nursing staff (e.g., glucose monitoring); provides valuable data used in research studies; provides data in selecting, for example, the most effective and economical antibiotic for treating patients; serves in a consultative role; and provides valuable data as to the nutritional needs of patients.
In order to improve timely reporting of lab results, performance improvement processes should be implemented that include pertinent data collection that can be used to measure and assess the success of timely reporting. The analysis of data collection is only valuable in improving the quality of patient care if appropriate steps are taken to improve outcomes. Using data outcomes serves its purpose when changes are made and better practices implemented, thus reducing laboratory-related lawsuits.
Failure to Follow Transfusion Protocol
Fowler, in Fowler v. Bossano,
gave birth to twins on March 26, 1996. As a result of premature birth, the twins were transferred to Lake Charles Memorial Hospital (LCMH) and were cared for by Bossano, a neonatologist. The infants experienced complications and problems associated with premature birth, including respiratory and feeding difficulties. The twins’ treatment included blood transfusions. Bossano stated that the twins proceeded through these difficulties and began to make progress, but then Ryan (one of the twins) took a turn for the worse. According to Bossano, Ryan’s condition generally continued to deteriorate until he died on May 25. Bossano stated that the most likely cause of death was a viral infection. At his urging, an autopsy was performed, and the pathologist found the presence of cytomegalovirus (CMV) inclusion disease. Bossano stated that he learned that the lab at the hospital did not, at that time, screen for the presence of the virus in the blood used for transfusions.
Ryan’s parents instituted proceedings under the Medical Malpractice Act, convening a medical review panel against Bossano and LCMH. The panel determined that the evidence presented did not support a finding that Bossano breached the standard of care. As for the hospital, the panel found that the evidence showed that it failed to comply with the appropriate standard of care with regard to the testing of blood. The child most likely expired from an overwhelming CMV viral infection resulting from blood product usage.
The formal policy of the hospital’s blood bank for selecting components for neonatal transfusion provided that blood products such as irradiated or CMV-negative products are available upon request but are not routinely used. The 16th edition of Standards for Blood Banks and Transfusion Services by the American Association of Blood Banks (AABB) provides, in Section 18.500, that “Where transfusion-associated CMV disease is a problem, cellular components should be selected or processed to reduce that risk to infant recipients weighing less than 1200 grams at birth, when either the infant or the mother is CMV antibody-negative or that information is unknown.”
The hospital’s policy did not provide for compliance with the applicable AABB policy at that time, so LCMH had the obligation to properly inform the medical staff and ensure that all such infants who might be affected could be readily identified. Bossano should have been able to make a correct medical assumption that all high-risk infants receiving blood products in the neonatal intensive care unit would receive CMV negative blood products.
The Fowlers decided to file suit naming both Bossano and the hospital as defendants. They sought damages associated with a survival action and those for wrongful death. The jury found for the plaintiffs. LCMH breached the applicable standard of care by failing to test the blood used for this transfusion for CMV. The evidence presented was sufficient to support the jury’s determination that the hospital’s breach of the standard of care was the cause of Ryan’s death.
A laboratory technician in Barnes Hospital v. Missouri Commission on Human Rights
had been discharged because of inferior work performance. On three occasions, the employee allegedly mismatched blood. The employee filed a complaint with the Commission on Human Rights, alleging racial discrimination as a reason for his discharge by the hospital. The hospital appealed, and the circuit court reversed the commission’s order. The technician appealed to the Missouri Supreme Court, which held that the evidence did not support the ruling of racial discrimination by the Missouri Commission on Human Rights.
In Dodson v. Community Ctr.,
3 So. 2d 2
(La. Ct. App. 1993), the patient was scheduled to undergo surgery at a medical center. In anticipation of the surgery and out of fear of contracting acquired immunodeficiency syndrome (AIDS) through blood transfusions from unknown donors, the patient arranged to have three known donors donate blood earmarked for his use should transfusion be required. After surgery, the patient was transfused with 2 pints of blood. However, the blood used was not the blood obtained from the patient’s voluntary donors. The blood had been taken from the hospital’s general inventory, which had been obtained from the community blood center. The patient subsequently learned that as a result of the transfusions, he had been infected with hepatitis C. A lawsuit was brought and the plaintiff was awarded $325,000 in general damages. The defendant appealed the amount of the award. The Louisiana Court of Appeal held that the award of damages was not excessive. In reasons for judgment, the trial court found that the patient was a credible witness. The plaintiff did not exaggerate his symptoms, fears, or worries about his condition. The court believed the patient when he said he felt like a leper and feared infecting his wife, child, and friends with the disease. The trial court arrived at what it determined to be an appropriate award for general damages. After careful review of the record and in light of the vast discretion of the trial court to assess general damages, the court found that there was no abuse of discretion.
Refusal to Work with Certain Blood Specimens
A laboratory technician was found to have been properly dismissed from her job for refusing to perform chemical examinations on vials with acquired immunodeficiency syndrome (AIDS) warnings attached in Stepp v. Review Board of the Indiana Employment Security Division.
The court of appeals held that the employee was dismissed for just cause and that the laboratory did not waive its right to compel employees to perform assigned tasks.
Failure to Diagnose Cervical Cancer
Cervical cancer is often curable when diagnosed in its early stages. A Pap smear screening makes early stage diagnosis of cervical cancer possible when properly performed and accurately read. Because of any one or more of the following: (1) the failure of a physician to order and/or review the results of Pap smears; (2) the carelessness on the part of laboratory staff in performing the test; (3) the failure of a pathologist to either review the test or make an accurate diagnosis; and/or (4) the failure to communicate test results to physicians and patients, the opportunity for early diagnosis and treatment is lost. In addition to these failures, the failure of a patient’s physician to thoroughly follow up on a patient’s test results can lead to late-stage treatment and sometimes early death, as noted in the following case.
LOST CHANCE OF SURVIVAL
Sander v. Geib, Elston, Frost Prof’l Ass’n, 506 N.W.2d 107 (S.D. 1993)
The patient had several gynecological examinations, including Pap smears, in 1977, 1978, 1980, 1984, 1986, and 1987. The patient’s physician performed the examinations. Specimens for the Pap test were submitted to a laboratory for evaluation. The laboratory procedure included a clerk assigning each specimen a number when it was received. A cytotechnologist would then screen the specimen. If the specimen was determined to be abnormal, it would be marked for review by a pathologist. Out of the Pap tests that were determined to be normal, only 1 in 10 was actually viewed by a pathologist. The pathologist made recommendations based on the classification of the Pap tests. A biopsy would be recommended if the Pap test was determined to be Class IV.
Except for the Pap test in 1987, which showed premalignant cellular changes, all of the patient’s other Pap tests were determined to be negative. In 1986, the laboratory made a notation to the patient’s physician that “moderate inflammation” was present. The patient’s physician, who was treating her with antibiotics for a foot inflammation, thought that the medication would also treat the other inflammation. In September 1987, the patient returned to her physician complaining of pain, erratic periods, and tiredness. After completing a physical, her physician took a Pap test, which he sent to the laboratory. He also referred her to a gynecologist. The pathologist recommended a biopsy. Biopsies and further physical examinations revealed squamous cell carcinoma that had spread to her pelvic bones. Her Pap tests were reexamined by the laboratory, which reported that the 1986 smear showed that malignancy was highly likely. The patient was referred to the University of Minnesota to determine whether she was a viable candidate for radiation treatment. The cancer, however, had spread, and the patient was not considered a candidate for radiation treatment because she had no chance of survival. When the university reviewed all of the available slides, they found cellular changes back to 1984.
The patient sued in 1988, alleging that the laboratory failed to detect and report cellular changes in her Pap tests in time to prevent the spread of the cancer. Before trial, the patient died. Her husband and sister were substituted as plaintiffs, and the complaint was amended to include a wrongful death action. After trial, a jury awarded $3.7 million in damages, which were reduced to $1 million by the circuit court. The jury found against the laboratory, and the laboratory appealed.
Was it erroneous for the trial court to submit to the jury the 1988 negligence claim based on the 1984 slide?
The South Dakota Supreme Court upheld the jury verdict and restored the $3.7 million damage award.
The court determined that evidence relating to negligence claims pertaining to Pap tests taken more than 2 years before filing the action was admissible because the patient had a continuing relationship with the clinical laboratory as a result of her physician submitting her Pap tests to the laboratory over a period of time.
1. What changes in procedure should the laboratory take to help ensure that Pap tests are properly classified?
2. How might continuous quality improvement activities improve the laboratory’s operations?
Procedures to reduce the risk of surgical specimen discrepancies and mix-ups of patient specimens can help prevent a wrong diagnosis for the patients involved. For example, two patients in different operating rooms at the same hospital at the same time could have breast biopsies performed in the laboratory on a stat basis. If the tissue slides are incorrectly labeled, the pathology readings sent back to the operating room could result in each patient getting the other patient’s results. Assuming one patient is cancer free and the other is not, the wrong patient gets a mastectomy and the other wakes up believing she did not have cancer.
Procedures must be in place to ensure that the correct specimens are being placed in the correct containers and properly labeled at the surgical table. Specimens, including blood, must not leave one’s possession until labeled. A strict chain of custody for each specimen must be maintained.
A pathology report discrepancy can occur when one pathologist renders a diagnosis and a second pathologist, looking at the same tissue, renders a different diagnosis. The pathology interpretation of the tissue reviewed can alter a clinician’s treatment plan and the patient’s prognosis. A review of discrepancies between pathologists and/or a physician’s diagnosis should be reviewed on an inter- and intradepartmental basis in order to improve the quality of patient care.
12.5 MEDICAL ASSISTANT
A medical assistant is an unlicensed person who provides administrative, clerical, and/or technical support to a licensed practitioner. A licensed practitioner is generally required to be physically present in the treatment facility, medical office, or ambulatory facility when a medical assistant is performing procedures. Employment of medical assistants is expected to grow much faster than the average for all occupations as the health services industry expands. This growth is a result, in part, of technologic advances in medicine and a growing and aging population. Increasing use of medical assistants in the rapidly growing healthcare industry will most likely result in continuing employment growth for the occupation.
Medical assistants work in physicians’ offices, clinics, nursing homes, and ambulatory care settings. The duties of medical assistants vary from office to office, depending on the location and size of the practice and the practitioner’s specialty. In small practices, medical assistants usually are generalists, handling both administrative and clinical duties. Those in large practices tend to specialize in a particular area, under supervision. Administrative duties often include answering telephones, greeting patients, updating and filing patients’ medical records, filling out insurance forms, handling correspondence, scheduling appointments, arranging for hospital admission and laboratory services, and handling billing and bookkeeping. Clinical duties vary according to state law and include assisting in taking medical histories, recording vital signs, explaining treatment procedures to patients, preparing patients for examination, and assisting the practitioner during examinations. Medical assistants collect and prepare laboratory specimens or perform basic laboratory tests on the premises, dispose of contaminated supplies, and sterilize medical instruments. They instruct patients about medications and special diets, prepare and administer medications as directed by a physician, authorize drug refills as directed, telephone prescriptions to a pharmacy, prepare patients for X-rays, perform electrocardiograms, remove sutures, and change dressings.
Medical assistants who specialize have additional duties. Podiatric medical assistants make castings of feet, expose and develop X-rays, and assist podiatrists in surgery. Ophthalmic medical assistants help ophthalmologists provide eye care. They conduct diagnostic tests, measure and record vision, and test eye muscle function. They also show patients how to insert, remove, and care for contact lenses, and they apply eye dressings. Under the direction of the physician, ophthalmic medical assistants may administer eye medications. They also maintain optical and surgical instruments and may assist the ophthalmologist in surgery.43
In 1987, the patient-plaintiff in Follett v. Davis
had her first office visit with Dr. Davis. In the spring of 1988, Follett discovered a lump in her right breast and made an appointment to see Davis; however, the clinic had no record of her appointment. The clinic’s employees directed her to radiology for a mammogram. Davis or any other physician at the clinic did not offer Follett an examination nor was she scheduled for an examination as a follow-up to the mammogram. A technician examined Follett’s breast and confirmed the presence of a lump in her right breast. After the mammogram, clinic employees told her that she would hear from Davis if there were any problems with her mammogram.
The radiologist explained in his deposition that the mammogram was not normal. Davis reviewed the mammogram report and considered it to be negative for malignancy. He was unaware of the lump in the patient’s breast, and there was no evidence that clinic employees informed him about it. The clinic, including Davis, never contacted Follett about her lump or the mammogram. On April 6, 1990, Follett called the clinic and was told that there was nothing to worry about unless she heard from Davis. On September 24, 1990, Follett returned to the clinic after she had developed pain associated with the lump. A mammogram performed on that day gave results consistent with cancer. Three days later, Davis made an appointment for Follett with a clinic surgeon for a biopsy and treatment. Davis subsequently transferred her care to other physicians. Follett’s biopsy had confirmed the diagnosis of cancer in October 1990.
Follett filed a lawsuit and the trial court granted summary judgment to Davis on the grounds that Follett failed to file her complaint within the applicable statute of limitations and she appealed.
The Indiana Court of Appeals determined that the evidence demonstrated that, had clinic procedures been properly followed, Davis or another physician at the clinic would have had made an accurate diagnosis. Follett timely filed her proposed complaint within 2 years of her last visits to Dr. Davis and the clinic. The trial court therefore improperly granted summary judgment.
12.6 MEDICAL IMAGING
Negligence in medical imaging tests and therapies often involves a failure to protect patients from falls and the negligent handling of equipment. For example, the plaintiff in Cockerton v. Mercy Hospital Medical Center
45 was admitted to the hospital for the purpose of surgery to correct a problem with her open bite. Her physician ordered postsurgical X-rays for her head and face to be taken the next day. A hospital employee took the plaintiff from her room to the X-ray department by wheelchair. A nurse assessed her condition as slightly drowsy. An X-ray technician took charge of the plaintiff in the X-ray room. After the plaintiff was taken inside the X-ray room, she was transferred from a wheelchair to a portable chair for the procedure. Upon being moved, the plaintiff complained of nausea, and the technician observed that the plaintiff’s pupils were dilated. The technician did not use the restraint straps to secure the plaintiff to the chair. At some point during the procedure, the plaintiff had a fainting seizure, and the technician called for help. When another hospital employee entered the room, the technician was holding the plaintiff in an upright position; she appeared nonresponsive. The plaintiff only remembered being stood up and having a lead jacket placed across her back and shoulders. The technician maintains that the plaintiff did not fall. At the time the plaintiff left the X-ray room, her level of consciousness was poor. The plaintiff’s physician noticed a deflection of the plaintiff’s nose. Because the plaintiff had fainted in X-ray, an incident report was completed at the request of the plaintiff’s physician. The following day, the deflection of the plaintiff’s nose was much more evident. A specialist was contacted, and an attempt was made to correct the deformity. The specialist made an observation that it would require a substantial injury to the nose to deflect it to that severity.
The plaintiff instituted proceedings against the hospital, alleging that the negligence of the nurses or technicians allowed her to fall during the procedure and subsequently caused injury. The trial court did not require expert testimony concerning the standard of care given by the technician. The jury concluded that the hospital was negligent in leaving the plaintiff unattended or failing to restrain her, which proximately caused her fall and injury. The jury rendered a verdict of $
, and the hospital appealed.
The Iowa Court of Appeals held that the patient was not required to present expert testimony on the issue of the hospital’s negligence. The conduct in question was simply the way the technician handled the plaintiff during the X-ray examination. The X-ray technician testified that during the X-ray, the plaintiff appeared to have a seizure episode. She also testified that she left the plaintiff unattended for a brief period and that she did not use the restraint straps that were attached to the portable X-ray chair. Using the restraint straps would have secured the plaintiff to the portable chair during the X-ray examination. The court found that substantial evidence existed to establish a causal connection between the hospital’s conduct and the plaintiff’s injury.
X-RAY CASSETTE FALLS ON PATIENT’S HEAD
Schopp v. Our Lady of the Lake Hospital, Inc.,
9 So. 2d 338, 98 1382 (La. App. 1 Cir. 6/25/99)
On August 2, 1993, Sophie Schopp stumbled coming from her bathroom and fell, striking her head. She was unable to get up, so she lay on the floor until approximately 8:00 AM, when a home health aide came to her home for her daily visit. Her doors were locked, but Schopp told Montgomery to go across the street and get a key, which she did. Emergency medical services arrived shortly thereafter and took Schopp to the hospital. Her friend and neighbor, Guwang, followed in her car. Schopp’s friend, Haper, also came to the hospital that morning.
Schopp was taken for skull X-rays, and when she returned, the X-ray technologist, Coates, told Haper and Guwang that there had been “a little accident.” Haper testified that Coates said that the X-ray plate fell on her head. He pointed to Schopp’s head and showed Haper where it had fallen on her. Haper stated she saw no mark or bruise and thought nothing more of it. Guwang testified, however, that she pushed back Schopp’s hair and saw a blue mark on the left side of her forehead.
A computed tomography scan showed that Schopp had a large acute subdural hematoma. Dr. Perone, a board-certified neurosurgeon, performed surgery to evacuate the hematoma. Although Schopp seemed to improve initially following the surgery, her health declined thereafter, and she died on August 16, 1993.
Schopp’s sons filed suit against the hospital (defendant) and two of the defendant’s X-ray technologists, Coates and Smith. The plaintiffs later dismissed Coates and Smith but proceeded to jury trial against the hospital. The jury rendered a verdict in favor of the plaintiffs, and an appeal was taken for wrongful death.
Was Schopp’s death caused by the negligence of hospital staff dropping an X-ray cassette on her head while she underwent a skull X-ray?
Schopp’s death was caused by the negligence of hospital staff dropping an X-ray cassette on her head while she underwent a skull X-ray.
Although there was conflicting testimony as to the cause of death, Morris apparently gave the most convincing testimony regarding Schopp’s injury. Morris stated that although he did not operate, he made the diagnoses that led to surgery. He pointed out he was the one who diagnosed the subdural hematoma. He stated that there was no doubt in his mind that the incident in the X-ray room caused the hematoma. He believed that the cartridge was dropped on Schopp’s head based on her statements to him and the alarmed tone in the nurse’s voice when she called him to report the X-ray incident. He saw the soft tissue swelling on Schopp’s head and noted that the hematoma was in the exact place she had shown him where the cartridge struck her.
In this case, there were two versions of the X-ray room incident—either the cartridge tilted less than an inch and barely brushed Schopp’s head, leaving no mark, or it was dropped from some distance and struck her with enough force to leave a soft tissue injury. The jury chose to believe the second version.
12.7 NUTRITIONAL SERVICES
Healthcare organizations are expected to provide patients with diets that meet their individual needs. Failure to do so can lead to negligence suits.
The daughter of the deceased in Lambert v. Beverly Enterprises, Inc.
filed an action claiming that her father had been mistreated. The deceased allegedly suffered malnutrition as a direct result of the acts or omissions of personnel. In addition, the plaintiff’s father suffered actual damages that included substantial medical expenses and mental anguish as a result of the injuries he sustained. A motion to dismiss the case was denied.
Malnutrition: A Serious Concern for Hospitalized Patients
The problem of malnutrition in hospitalized patients was revealed in a 19
article, “The Skeleton in the Hospital Closet,” by Charles Butterworth, Jr., MD, and published in Nutrition Today. Citing several cases of neglect in nutrition care, Butterworth pointed out that changes in practice were urgently needed to properly diagnose and treat undernourished patients and prevent iatrogenic malnutrition.
—Theresa A. Fessler, MS, RD, CNSD, Today’s Dietitian, July, 2008
Many states have enacted legislation that provides civil immunity to paramedics who render emergency lifesaving services. Immunity does not, however, extend to negligent acts.
Chicago City Council Approves $1.75M Settlement in Ambulance Case
The Chicago City Council today approved a $1.75 million settlement with the family of a 13-year-old girl who died a decade ago after city paramedics allegedly botched her care amid an asthma attack.
Paramedics in July 2002 incorrectly inserted a tube meant to help Arielle Starks breathe, said Jeffrey Levine, deputy corporation counsel.
—Hal Dardick, Chicago Tribune, February 15, 2012
Wrong Dosage Administered
The plaintiff in Malone v. City of Seattle
alleged that the defendant was negligent in providing care to the plaintiff after an automobile accident. The plaintiff, on appeal, contended that the trial court wrongfully instructed the jury regarding a 19
civil immunity statute. The following is an excerpt from the relevant Washington statute:
No act or omission of any physician’s trained mobile intensive care paramedic … done or omitted in good faith while rendering emergency lifesaving service … to a person who is in immediate danger of loss of life shall impose any liability upon the trained mobile intensive care paramedic … or upon a … city or other local governmental unit.48
One of the issues raised was whether the legislature intended the statute to apply only to the rendition of cardiopulmonary emergency treatment by a paramedic. The court of appeals indicated that although the definition contained in the statute places special emphasis on the paramedic’s training in all aspects of CPR, the act does not limit the paramedic to CPR. The act implicitly recognizes that paramedics may encounter different emergencies.
Protected by Good Samaritan Statute
The daughter of a deceased patient in Dunlap v. Young
49 had brought a wrongful death action against emergency medical services (EMS) personnel for the death of her mother. The critically ill patient died after receiving care for respiratory distress in the ambulance while en route to the hospital.
Under the Good Samaritan statute, an Illinois court found that EMS personnel were not negligent in their treatment of the decedent. They had acted promptly to get the patient to the hospital. Although EMS personnel had failed to intubate the patient, she had been provided with oxygen and assisted respiration.
Inability to Diagnose Extent of Injury
In Morena v. South Hills Health Systems,50 the Pennsylvania Supreme Court held that paramedics were not negligent in transporting a victim of a shooting to the nearest available hospital rather than to a hospital located 5 or 6 miles away where a thoracic surgeon was present. The paramedics were not capable of diagnosing the extent of the decedent’s injury. Except for a children’s center and a burn center, there were no emergency trauma centers specifically designated for the treatment of particular injuries.
Lidocaine Administered 44 Times Normal Dosage
In Riffe v. Vereb Ambulance Service, Inc.,
a wrongful death action was filed by appellants against Vereb Ambulance Service, St. Francis Hospital, and Custozzo. The complaint alleged that, while responding to an emergency call, defendant Custozzo, an emergency medical technician employed by Vereb, began administering lidocaine to Anderson, as ordered over the telephone by the medical command physician at the defendant hospital. While en route to the hospital, Anderson was administered lidocaine at 44 times the normal dosage. Consequently, normal heart function was not restored, and Anderson was pronounced dead at the hospital shortly thereafter.
The superior court held that the liability of medical technicians could not be imputed to the hospital. The court noted the practical impossibility of the hospital carrying ultimate responsibility for the quality of care and treatment given patients by EMS. The focus of training and monitoring of such services must lie with EMS regional and local councils pursuant to and subject to regulations promulgated by the department of health.
Although hospitals, as facilities, participate in the overall operation of EMS services, the hospital command facility derives its function from the law and regulations relating to the operation of EMS. The networking of EMS and command facilities is such that they have a common interrelated function that is apart from the administration of the hospitals to which they are attached. Because EMS may be involved with several hospitals depending on specialization, and even allowing for patients’ directions, a hospital’s legal responsibility for the operation of any given EMS becomes too tenuous.
Failure to Transport Patient
The deceased’s parents in Lemann v. Essen Lane Daiquiris
52 filed a wrongful death action after paramedics failed to transport their son to the hospital for evaluation after they had treated him following a fight in the parking lot of a bar. It was determined that the parents failed to establish that the paramedics breached their duty to care when they did not transport their son to the hospital. Although police officers at the scene testified that the deceased was intoxicated and had slurred speech and erratic behavior, paramedics testified that they found him to be alert and oriented. In addition, he twice refused to be transported to the hospital and signed a waiver form that acknowledged his refusal to the paramedics to transport him to the hospital.
Paramedic License Denied
The South Dakota Board of Medical and Osteopathic Examiners was found not to have acted arbitrarily in denying the petitioner’s application for a paramedic license. The record indicated that the board had considered the petitioner’s multiple felony convictions along with extensive evidence of her current conduct. Considering her six felony convictions, the board was not arbitrary and capricious in concluding that Benton did not meet her burden of proving good moral character and an absence of unprofessional or dishonorable conduct.
The appeals court was advised that the petitioner recently received a pardon for her convictions and that she had completed paramedic training in Nebraska. The board did not have the benefit of that information at the time it heard the matter, and those facts were not in the record. The appeals court could only deal with matters presented in the record and, therefore, remanded the matter to the circuit court with directions to remand to the board for further proceedings.
The practice of pharmacy essentially includes preparing, compounding, dispensing, and retailing medications. These activities may be carried out only by a pharmacist with a state license or by a person exempted from the provisions of a state’s pharmacy statutes. The entire stock of drugs in a pharmacy is subject to strict government regulation and control. The pharmacist is responsible for developing, coordinating, and supervising all pharmacy activities and reviewing the drug regimens of each patient.
FDA Finds Widespread Safety Issues at Specialized Pharmacies
Federal inspectors have found dozens of potentially dangerous safety problems at 30 specialized pharmacies, months after tainted steroid shots made by a Massachusetts pharmacy triggered the worst drug disaster in decades.
◽ ◽ ◽
FDA officials say the inspections show that compounders, in many cases, are failing to ensure the safety of their products, despite months of stepped-up scrutiny from state and federal regulators as well as consumer groups.
—Lena H. Sun, The Washington Post, April 12, 2013
Medication errors are considered to be a leading cause of medical injury in the United States. Antibiotics, chemotherapeutic drugs, and anticoagulants are three categories of drugs responsible for many drug-related adverse events. Because of the immense variety and complexity of medications now available, it is practically impossible for nurses or doctors to keep up with the information required for safe medication use. The pharmacist has become an essential resource in modern hospital practice.
It is therefore mandatory that hospital pharmacies “have an adequate number of personnel to ensure quality pharmaceutical services, including emergencies.”
The prevention of medication errors requires recognition of common causes and the development of practices to help reduce the incidence of errors. With thousands of drugs, many of which look and sound alike, it is understandable why medication errors are so common. The following list describes some of the more common types of medication errors.
• Prescription errors include wrong patient, wrong drug, wrong dose, wrong frequency, wrong route, transcription errors (often as a result of illegible handwriting and improper use of abbreviations), inadequate review of drug ordered (e.g., known drug allergies, drug–drug and food–drug interaction[s]), and inadequate review of medication for appropriateness.
• Dispensing errors include improper preparation of medication, failure to properly formulate medications, dispensing expired medications, mislabeling containers, wrong patient, wrong dose, wrong route, and misinterpretation of physician’s order.
• Administration errors include wrong patient, wrong route, double-dosing (drug administered more than once), failure to administer medications, wrong frequency, administering discontinued drugs, administering drugs without an authorized order, and wrong dose (e.g., IV rate).
• Documentation errors include transcription errors (often as a result of illegible handwriting and improper use of abbreviations), inaccurate transcription to medication administration record (MAR), charted but not administered, administered but not documented on the MAR, discontinued order not noted on the MAR, and medication wasted and not recorded.
The Institute for Safe Medication Practices (ISMP) is a nonprofit organization based in Philadelphia devoted entirely to medication error prevention and safe medication use. The organization’s website (
) should be visited on a regular basis to assist in the prevention of medication errors.
Government Control of Drugs
The power and authority to regulate drugs, packaging, and distribution rest primarily with federal and state governments. Consequently, there are often two sets of regulations and standards governing the same activity. In general, states have attempted to enact laws that comply with federal laws. For example, most states have adopted the Uniform Controlled Substances Act (UCSA). This law is based on and is in conformity with the federal Controlled Substances Act. Several states have modified the UCSA in various ways, frequently setting more stringent standards than are required under the federal law.
Controlled Substances Act
The Comprehensive Drug Abuse Prevention and Control Act of 1970, commonly known as the Controlled Substances Act (CSA), was signed into law on October 27, 1970, as Public Law No. 91-513. This law replaced virtually all preexisting federal laws dealing with narcotics, depressants, and stimulants.
The CSA places all substances that are regulated under existing federal law into one of five schedules. This placement is based upon the substance’s medicinal value, harmfulness, and potential for abuse or addiction. Schedule I is reserved for the most dangerous drugs that have no recognized medical use, while Schedule V is the classification used for the least dangerous drugs. The act also provides a mechanism for substances to be controlled, added to a schedule, decontrolled, removed from control, rescheduled, or transferred from one schedule to another.
Federal Food, Drug, and Cosmetic Act
The Federal Food, Drug, and Cosmetic Act (FDCA) applies to drugs and devices carried in interstate commerce and to goods produced and distributed in federal territory. The act’s requirements apply to almost every drug that would be dispensed from a pharmacy, because nearly all drugs and devices, or their components, are eventually carried in interstate commerce.
Section 502 of the Act sets forth the information that must appear on the labels or the labeling of drugs and devices. The label must contain, among other special information: (1) the name and place of business of the manufacturer, packer, or distributor; (2) the quantity of contents; (3) the name and quantity of any ingredient found to be habit forming, along with the statement, “Warning—may be habit-forming”; (4) the established name of the drug or its ingredients; (5) adequate directions for use; (6) adequate warnings and cautions concerning conditions of use; and (7) special precautions for packaging.
The regulation implementing the labeling requirements of Section 502 exempts prescription drugs from the requirement that the label bear “adequate directions for use for laymen” if the drug is in the possession of a pharmacy or under the custody of a practitioner licensed by law to administer or prescribe legend drugs.
This particular exemption applies only to prescription drugs meeting the other requirements. Ordinary household remedies in the custody or possession of a practitioner or pharmacist would not fall under the labeling exemption.
If the drug container is too small to bear a label with all the required information, the label may contain only the quantity or proportion of each active ingredient and the lot or control number. The prescription legend may appear on the outer container of such drug units. The lot or control number may appear on the crimp of a dispensing tube, and the remainder of the required label information may appear on other labeling within the package.
Besides the label itself, each legend must be accompanied by labeling, on or within the sealed package from which the drug is to be dispensed, bearing full prescribing information including indications; dosage; routes, methods, and frequency of administration; contraindications; side effects; precautions; and any other information concerning the intended use of the drug necessary for the prescriber to use the drug safely. This information usually is contained in what is known in the trade as the package insert.
Besides federal laws affecting the manufacture, use, and handling of drugs, the different states have controlling legislation. All states regulate the practice of pharmacy, as well as the operation of pharmacies. State regulations generally provide that: (1) each healthcare organization must ensure the availability of pharmaceutical services to meet the needs of patients; (2) pharmaceutical services must be provided in accordance with all applicable federal and state laws and regulations; (3) pharmaceutical services must be provided under the supervision of a pharmacist; (4) space and equipment must be provided within the organization for the proper storage, safeguarding, preparation, dispensing, and administration of drugs; (5) each organization must develop and implement written policies and procedures regarding accountability, distribution, and assurance of quality of all drugs; and (6) each organization must develop and follow current written procedures for the safe prescription and administration of drugs.
State laws require that pharmacies be licensed and that they be under the supervision of a person licensed to practice pharmacy. The pharmacist usually can be either an employee of the organization or a consultant. The authority of an organization to operate a pharmacy is conditioned on compliance with licensing requirements affecting the pharmacy premises and its personnel. The statutes applying to pharmacies usually empower regulatory agencies, such as the state pharmacy board, to issue rules and regulations as necessary.
Each organization is subject to liability for the negligent acts of its professional and nonprofessional employees in the handling of drugs and medications within the organization. Both the pharmacist and the organization are subject to criminal liability, as well as civil liability, for the violation of statutory directives. Most states have regulations that dictate in detail the dispensing, distribution, administration, storage, control, and disposal of drugs within healthcare organizations.
Storage of Drugs
Drugs must be stored in their original containers and must be labeled properly. The label should indicate the patient’s full name, physician, prescription number, strength of the drug, expiration date of all time-dated drugs, and the address and telephone number of the pharmacy dispensing the drug. The medication containers must be stored in a locked cabinet at the nurses’ station. Medications containing narcotics or other dangerous drugs must be stored under double lock (e.g., a locked box within the medicine cabinet). The keys to the medicine cabinet and narcotics box must be in the possession of authorized personnel. Medications for external use only must be marked clearly and kept separate from medications for internal use. Medications that are to be taken out of use must be disposed of according to federal and state laws and regulations.
Healthcare organizations use a formulary system, whereby physicians and pharmacists create a formulary listing of drugs used in the institution. The formulary contains the brand names and generic names of drugs. Under the formulary system, a physician agrees that his or her prescription, which calls for a brand-name drug, may be filled with the generic equivalent of that drug (i.e., a drug that contains the same active ingredients in the same proportions). If there is a medical contraindication to prescribing a generic drug for a particular patient, the physician may prescribe the brand-name drug. Hospitals that dispense and administer a generic drug for financial reasons when a brand-name drug is requested for medical reasons will most likely be liable for any harm suffered by the patient as a result of being administered the generic equivalent of the brand-name drug.
Dispensing and Administration of Drugs
The dispensing of medications is the processing of a drug for delivery or for administration to a patient pursuant to the order of an appropriately licensed healthcare practitioner. It consists of checking the directions on the label with the directions on the prescription or order to determine accuracy; selecting the drug from stock to fill the order; counting, measuring, compounding, or preparing the drug; placing the drug in the proper container; and adding to a written prescription any required notations.
Inside a Pharmacy Where a Fatal Error Occurred
Lewis typed up a prescription label with erroneous dosage instructions. About 36 hours later, Smith died of what an autopsy found was an accidental methadone overdose.
It may be impossible to fix blame precisely for Smith’s death, in part because Walgreens in December settled the lawsuit with his family in a confidential agreement that bars any discussion of the case. However, the depositions and interviews gathered before the settlement suggest that both a technician with limited experience and a pharmacist coping with a heavy workload figured in the tragedy.
—Kevin McKoy, USA Today, February 12, 2008
The administration of medications is an act in which an authorized person, in accordance with federal and state laws and regulations, gives a single dose of a prescribed drug to a patient. The complete act of administration includes removing an individual dose from a previously dispensed, properly labeled container (including a unit-dose container); verifying it with the physician’s order; giving the individual dose to the proper patient; and recording the time and dose given.
Each dose of a drug administered must be recorded on the patient’s clinical records. A separate record of narcotic drugs must be maintained. The narcotic record must contain the following information: date and time administered, physician’s name, signature of person administering the dose, and the balance of the narcotic drug on hand.
In the event that an emergency arises requiring the immediate administration of a particular drug, the patient’s record should be documented properly, showing the necessity for administration of the drug on an emergency basis. Procedures should be in place for handling emergency situations.
Drug substitution may be defined as the dispensing of a different drug or brand in place of the drug or brand ordered. Several states prohibit this, and penal sanctions, including loss of license, are imposed for violation of the law.
Expanding Role of Pharmacist
Historically, the role of the pharmacist was centered on the management of the pharmacy and the accurate dispensing of drugs. The duties and responsibilities of pharmacists have moved well beyond the concept of filling prescriptions and dispensing drugs. Schools of pharmacy have recognized the ever-expanding role of the pharmacist into the clinical aspects of patient care—so much so that educational requirements are getting more stringent, with emphasis on clinical education and application. Pharmacists now, among other duties, maintain patient medication profiles and monitor patient profiles, looking for incompatibilities between drug–drug and food–drug interactions.
Pharmacists have an ever-expanding clinical role in the delivery of patient care. For example, pharmacists often maintain a separate telephone line in hospitals for caregivers and practitioners to use to discuss medication usage. Pharmacists play an important role when they respond and participate in reviving patients in cardiac arrest. Their knowledge of drugs, potential drug interactions, and proper dosing can be the difference between life and death. Some hospitals have reported improved code outcomes when pharmacists attend and participate in patient codes. Although a variety of legal cases, as they apply to pharmacy, are presented in the following sections, recent legal cases of interest to pharmacists can be found at the American Society for Pharmacy Law website (
Duty to Monitor Patient’s Medications
In Baker v. Arbor Drugs Inc.,
a Michigan court imposed a duty on a pharmacist to monitor a patient’s medications. The patient filled three different prescriptions by the same physician at the same pharmacy. The pharmacy maintained a computer system that detected drug–drug interactions. The pharmacy advertised to consumers that it could, through the use of a computer-monitoring system, provide a medication profile for its customers that would alert its pharmacists to potential drug–drug interactions. Because the pharmacy advertised and used the computer system to monitor the medications of its customers, the pharmacist voluntarily assumed a duty of care to detect the harmful drug–drug interaction that occurred in this case, where it was determined without question that decedent suffered injury when he suffered a stroke due to the adverse drug interaction between two drugs, Parnate and Tavist-D.
Warning Patients About Potential for Overdose
A Pennsylvania court held that a pharmacist failed to warn the patient about the maximum dosage of a drug the patient could take.
This failure resulted in an overdose, causing permanent injuries. Expert testimony focused on the fact that a pharmacist who receives inadequate instructions as to the maximum recommended dosage has a duty to ascertain whether the patient is aware of the limitations concerning the use of the drug. The pharmacist should have contacted the prescribing physician to clarify the prescription.
Refuse to Honor Questionable Prescription
In Hooks v. McLaughlin,60 the Indiana Supreme Court held that a pharmacist had a duty to refuse to refill prescriptions at an unreasonably faster rate than prescribed pending directions from the prescribing physician. The Indiana code provides that a pharmacist is immune from civil prosecution or civil liability if he or she, in good faith, refuses to honor a prescription because, in his or her professional judgment, the honoring of the prescription would aid or abet an addiction or habit.
Limited Duty to Warn
The rules and regulations promulgated by the Georgia State Board of Pharmacy require a generalized duty on the part of pharmacists to warn of every potentially adverse drug reaction. In this case, the pharmacy was properly granted summary judgment with respect to claims arising from a patient’s extreme allergic reaction, namely, Stevens–Johnson syndrome, to a prescription drug—Daypro, a nonsteroidal anti-inflammatory drug—even though it was alleged that the pharmacist failed to warn the patient of the potential side effects of the drug.
Refusal to Fill Prescription
The plaintiff, in Sellars v. Walgreen Co.,63 filed a complaint on behalf of himself and the wrongful death beneficiaries of his mother against Walgreen Co., alleging that a Walgreens pharmacist negligently caused the death of his mother for refusing to fill her prescription without first receiving promise of payment. Walgreens filed for summary judgment with the Lee County Circuit Court, which the court granted. The plaintiff appealed, alleging that the court erred in granting summary judgment because there were genuine issues of material fact.
The Court of Appeals of the State of Mississippi found no error in the County Court’s decision to grant summary judgment for the defendants, finding no issue of material fact that established a legal duty or standard of care owed by Walgreens to the deceased.
Failure to Consult with the Patient’s Physician
The pharmacist in Warren v. Walgreen
64 was found negligent for failing to warn a deceased patient about possible drug interactions when filling two prescriptions over 2 days. In this case, the pharmacist increased the dosage of the second drug without consulting a physician.
Intravenous Admixture Service
Intravenous fluids, with or without added medications, are generally prepared in an IV admixture room by highly skilled and trained pharmacists and technicians. Pharmacists are expected to oversee the work of pharmacy technicians. Medications prepared in admixture rooms include antibiotics, chemotherapy, and electrolytes, as well as intravenous nutrition solutions that are tailored for each patient’s needs. Elements crucial to the process of preparing sterile products include stability of the mixtures, sterility, solubility of added ingredients, considerations of incompatibilities, storage, and proper labeling. Proper disposal is a key consideration for the protection of personnel and the environment.
Error That Led to Baby’s Death Slipped Through Many Hands
When a mistake goes through at least six staffers at Summerlin Hospital Medical Center, leading to the death of a premature baby, there’s only one word to describe it, according to Dr. Florence Jameson, past president of the Clark County Medical Society:
The mistakes that led up to Alyssa Shinn’s death on Nov. 9 started the night before when pharmacist Pamela Goff mishandled the entry of Alyssa’s prescription into the pharmacy’s computer. It ended with neonatal intensive care unit nurses hanging an IV bag containing zinc at 1,000 times the amount prescribed the preemie.
—Annette Wells, Las Vegas Review Journal, August 5, 2007
A sterile compounding environment is maintained with the use of laminar flow hoods and aseptic techniques. Vertical and horizontal laminar flow hood cabinets are utilized in the preparation of intravenous fluids. The cabinets are designed for creation of a bacterial dust–free air space. They are utilized for work with low-risk substances and materials, when protection of working material from the environment is required or work with an item requires a sterile working space. The hoods are maintained daily and periodically certified for proper functioning.
Aseptic technique is the key to producing a sterile product. The American Society of Health-System Pharmacists and the Occupational Safety and Health Administration, amongst others, provide guidelines and regulations in order to provide for a safe working environment.
An observational study of the accuracy in compounding IV admixtures at five hospitals showed that “Of every 100 errors, 2 were judged to be potentially clinically important. In five U.S. hospital pharmacies, the observed error rate for compounding i.v. admixtures was 9%.”
Medications and Helpful Tips
The following medication checklist is helpful in reducing, if not eliminating, the number of adverse events:
• There is a process for documenting a complete listing of a patient’s current medications upon admission to the hospital or other facility.
• Attending physician decides which medications should be continued during patient’s stay.
• Handwriting is legible and printed if necessary for readability.
• Felt-tip pens are avoided.
• Orders are clear.
• A zero is added prior to a decimal.
• Abbreviations are avoided except were permitted by hospital policy.
• A process is in place for validating interpretation of illegible medication orders.
• Hold orders are accompanied by a time frame.
• Medications are properly diluted before administering.
• Drugs are safely stored, ordered, and distributed.
• Potentially dangerous look-alike drugs are separated in the pharmacy.
• High-risk drugs are easily identified and standardized when feasible.
• Look-alike medications are repackaged or relabeled, as necessary, in the pharmacy.
• Medications are labeled as to dosage and expiration date.
• Medications are administered at the proper time in the prescribed dosage by the correct route (e.g., IV, intramuscular, oral).
• A complete list of medications is available to the next provider when the patient is transferred from one setting to another (e.g., service, practitioner, or level of care within or outside the organization).
• Upon discharge, the attending physician instructs the patient as to which drugs should be continued or discontinued.
• Risk reduction activities are in place to reduce the likelihood of adverse drug reactions and medication errors.
• There is a mechanism for monitoring the effect of medications on patients.
• Responsibility for ensuring the integrity of crash carts has been assigned.
• There are appropriate medications and equipment on crash carts for treating both children and adults.
• Staff members are appropriately trained in the testing and use of equipment contained in or on the crash cart.
• Staff members who participate in codes are periodically tested for competency.
• A mechanism is in place for approving and overseeing the use of investigational drugs.
• Causes and trends of medication errors are tracked and changes made in the process as necessary to improve outcomes.
• Educational processes have been implemented to reduce the likelihood of medication errors and adverse drug events.
12.10 PHYSICAL THERAPY
Physical therapy is the art and science of preventing and treating neuromuscular or musculoskeletal disabilities through the evaluation of an individual’s disability and rehabilitation potential; the application of physical agents (heat, cold, ultrasound, electricity, water, and light); and the use neuromuscular procedures that, through their physiologic effect, improve or maintain the patient’s optimum functional level. Because of different physical disabilities brought on by various injuries and medical problems, physical therapy is an extremely important component of a patient’s total health care. Physical therapists, therefore, have a legal duty as any other health professional to adhere to an accepted standard of care when providing care and treatment. Negligence occurs when the physical therapist fails to provide rehabilitation or treatment at the accepted standard of care that other physical therapists in similar circumstances would have provided.
Areas of liability concern for physical therapists include: failure to obtain a completed prescription from the prescribing physician, failure to follow physician’s orders or to clarify such orders, aggressive treatment (e.g., use of heavy weights), and treatment burns from hot packs. Adherence to the physician’s treatment plan as prescribed and seeking clarification when necessary, review of patient’s history and risk assessments, preparation of equipment to be used, and observation and feedback from the patient will go a long ways in reducing the number of injuries suffered by physical therapy patients.
Incorrectly Interpreting Physician’s Orders
Pontiff, in Pontiff v. Pecot & Assoc.,
filed a petition for damages against Pecot and Associates and Morris. Pontiff alleged Pecot and Associates had been negligent in failing to properly train, supervise, and monitor its employees, including Morris, and that Pecot and Associates was otherwise negligent. Pontiff alleged that employee Morris failed to exercise the degree of care and skill ordinarily exercised by physical therapists, failed to heed his protests that he could not perform the physical therapy treatments she was supervising, and failed to stop performing physical therapy treatments after he began to complain he was in pain. Pontiff claimed he felt a muscle tear while he was exercising on the butterfly machine, a resistive exercise machine.
Pontiff’s expert, Boulet, a licensed practicing physical therapist, testified that Morris deviated from the standard of care of physical therapists by introducing a type of exercise that, according to her, was not prescribed by Dr. deAraujo, the treating physician. She stated that Pecot added resistive or strengthening exercises to Pontiff’s therapy and these were not a part of the physician’s prescription. Pecot argued that resistive exercises were implicitly part of the prescription, even if her interpretation of the prescription was not reasonable.
Legally, under Louisiana law, a physical therapist may not treat a patient without a written physical therapy prescription. Ethically, the Physical Therapists’ Code of Ethics, Principle 3.4, states that any alteration of a program or extension of services beyond the program should be undertaken in consultation with the referring practitioner. Because resistive exercises were not set forth in the original prescription, Boulet stated that consultation with the physician was necessary before Pontiff could be advanced to that level. Only in the case where a physician has indicated on the prescription that the therapist is to evaluate and treat would the therapist have such discretion. There was no such indication on the prescription written by deAraujo.
Davis, a physical therapist in private practice and Pecot’s expert witness, testified that the program that Pecot designed for Pontiff was consistent with how she interpreted the prescription for therapy that the physician wrote. Davis, however, did not, at any time, state that Pecot’s interpretation was a reasonable one. In fact, Davis herself would not have interpreted the prescription in the manner that Pecot did. Davis testified only that Pecot’s introduction of resistive exercises was reasonable based on her interpretation of the prescription.
It is clear that Pecot, as a licensed physical therapist, owed a duty to Pontiff, her client. Pecot’s duty is defined by the standard of care of similar physical therapists and the Association of Physical Therapists of America. If Pecot found the prescription to be ambiguous, she had a duty to contact the prescribing physician for clarification. The appeals court found that the trial court was correct in its determination that Pontiff presented sufficient evidence to show that this duty was breached and that Pecot’s care fell below the standard of other physical therapists.
Termination of Contracted Services
The physical therapist in Armintor v. Community Hospital of Brazosport
was properly enjoined from entering the hospital’s premises after termination of an oral contract to furnish services to hospital patients in need of physical therapy. Substantial evidence supported the court’s finding that the hospital’s attempt to establish a hospital-based physical therapy program would have been disrupted if the independent therapist had been permitted to continue treating patients. The court considered the exclusion of a therapist an administrative matter within the board’s discretion. The therapist’s entering the hospital without the permission of a staff physician would constitute trespass and would be in violation of hospital policy.
In Zucker v. Axelrod,
a physical therapist had been charged with resident neglect for refusing to allow an 82-year-old nursing facility resident to go to the bathroom before starting his therapy treatment session. Undisputed evidence at a hearing showed that the petitioner refused to allow the resident to be excused to go to the bathroom. The petitioner claimed that her refusal was because she assumed that the resident had gone to the bathroom before going to therapy and that the resident was undergoing a bladder training program. The petitioner had not mentioned when she was interviewed after the incident or during her hearing testimony that she considered bladder training a basis for refusing to allow the resident to go to the bathroom. It is uncontroverted that the nursing facility had a policy of allowing residents to go to the bathroom whenever they wished to do so. The court held that the finding of resident neglect was supported sufficiently by the evidence.
Physical Therapist License Revoked
The license of a physical therapist was found to have been properly revoked by the Bureau of Professional and Occupational Affairs, State Board of Physical Therapy after the therapist had been disciplined in other states. In New Jersey, the board of physical therapy denied Girgis a license to practice physical therapy. The Michigan Board of Physical Therapy imposed a $1,000 fine on Girgis. The South Carolina Board of Physical Therapy suspended Girgis’s license indefinitely. The New Hampshire Governing Board of Physical Therapy suspended Girgis’s license for 5 months. The Montana Board of Physical Therapy Examiners revoked Girgis’s license. The Medical Licensing Board of Indiana put Girgis’s license on indefinite probation for no less than 2 years and later indefinitely suspended it for no less than 6 months and imposed a $500 fine because Girgis failed to comply with the terms of his probation. The Hawaii Board of Physical Therapy suspended Girgis’s license for 5 months. The Florida Department of Health accepted Girgis’s voluntary relinquishment of his Florida license.
Whether Girgis was incompetent, negligent, abusive, or a risk to patients in Pennsylvania was found to be wholly irrelevant. The sole inquiry is whether his license to practice physical therapy was suspended, revoked, or otherwise disciplined in another jurisdiction. Because he does not dispute that he was disciplined in eight states, the board did not err in disciplining him in Pennsylvania.
12.11 PHYSICIAN’S ASSISTANT
A physician’s assistant (PA) is a medical professional who is a graduate of an accredited PA educational training program and is nationally certified and state licensed to practice medicine with the supervision of a physician. One of the solutions to the shortage of physicians has been to train PAs, as well as nurse practitioners, to perform the more routine and repetitive medical procedures. Physician’s assistants are generally licensed to administer injections, perform routine history and physical examinations, order and interpret tests, diagnose and treat patient ailments (e.g., assist in surgery, suture minor lacerations), prescribe medications, and provide patient education and counseling. A physician may not delegate a task to a PA in those instances where regulations specify that the physician must perform the task or when delegation of a task is prohibited under state law or by an organization’s policies by which the PA is employed.
Jury Awards $3 Million in Malpractice Suit
Sinuses treated with steroids, not antibiotic
But Mr. Del Sole said that the doctors in the office failed to follow the protocol they laid out in employing a physician’s assistant.
On paperwork submitted with the state, Dr. DeGiovanni and Dr. Montini said they would see every patient treated by Ms. Egidi [Physician’s Assistant].
“The testimony was undisputed that that did not happen,” Mr. Del Sole said. “Clearly, the doctor would have treated her differently.”
—Paula Reed Ward, Pittsburgh Post-Gazette, November 24, 2007
Physician’s assistants are responsible for their own negligent acts. The employer of a PA can be held liable for the PA’s negligent acts on the basis of respondeat superior. Guidelines and procedures should be established, as with any professional, to provide a standard mechanism for reviewing a PA’s skills and performance. The reader is encouraged to review applicable laws that regulate a physician’s assistant scope of practice, which may vary from state to state (e.g., Title 16 California Code of Regulations Section 1399.541). Due to the ever-increasing shortage of physicians, the educational requirements and scope of practice for physician’s assistants will most likely continue to expand.
Podiatry is that branch of medicine involving the study of, diagnosis, and medical treatment of disorders of the feet, ankles, and lower extremities. Although the scope of practice is based on a state’s licensing laws, podiatrists generally provide the following services: perform complete medical histories and physical examinations, order and interpret imaging studies, prescribe medications, perform minor surgery and set fractures, prescribe and fit orthotics, and prescribe physical therapy as required. The legal concerns of podiatrists, similar to those of surgeons, include misdiagnosis and negligent surgery. The podiatrist, for example, in Strauss v. Biggs
70 was found to have failed to meet the standard of care required of a podiatrist, and that failure resulted in injury to the patient. The podiatrist, by his own admission, stated that his initial incision in the patient’s foot had been misplaced. The trial court was found not to have erred in permitting the jury to consider additional claims that the podiatrist acted improperly by failing to refer the patient, stop the procedure after the first incision, inform the patient of possible nerve injury, and provide proper postoperative treatment. Testimony of the patient’s experts was adequate to show that such alleged omissions violated the standard of care required of podiatrists.
12.13 RESPIRATORY THERAPIST
Respiratory therapy is the allied health profession responsible for the treatment, management, diagnostic testing, and control of patients with cardiopulmonary deficits. A respiratory therapist is a person employed in the practice of respiratory care who has the knowledge and skill necessary to administer respiratory care. Respiratory therapists are responsible for their negligent acts, and a respiratory therapist’s employer is responsible for the negligent acts of the therapist under the legal doctrine of respondeat superior.
Failure to Remove Endotracheal Tube
The court in Poor Sisters of St. Francis v. Catron
71 held that the failure of nurses and an inhalation therapist to report to the supervisor that an endotracheal tube had been left in the plaintiff longer than the customary period of 3 or 4 days was sufficient to allow the jury to reach a finding of negligence. The patient experienced difficulty speaking and underwent several operations to remove scar tissue and open her voice box. At the time of trial, she could not speak above a whisper and breathed partially through a hole in her throat created by a tracheotomy. The hospital was found liable for the negligent acts of its employees and the resulting injuries to the plaintiff.
Multiple Use of Same Syringe
The respiratory therapist in State University v. Young
was suspended for using the same syringe for drawing blood from a number of critically ill patients. The therapist had been warned several times of the dangers of that practice and that it violated the state’s policy of providing quality patient care.
Restocking the Code Cart
Dixon had been admitted to the hospital and was diagnosed with pneumonia in her right lung. Dixon’s condition began to deteriorate, and she was moved to the intensive care unit (ICU). A code blue was eventually called, signifying that her cardiac and respiratory functions were believed to have ceased. During the code, a decision was made to intubate, which is to insert an endotracheal tube into Dixon so that she could be given respiratory support by a mechanical ventilator. As Dixon’s condition stabilized, Dr. Taylor, Dixon’s physician at that time, ordered that she gradually be weaned from the respirator. Blackham, a respiratory therapist employed by the hospital, extubated Dixon at 10:15 PM. Taylor left Dixon’s room to advise her family that she had been extubated. Blackham decided an oxygen mask would provide better oxygen to Dixon but could not locate a mask in the ICU, so he left the ICU and went across the hall to the critical care unit (CCU). When Blackham returned to Dixon’s room with the oxygen mask and placed it on Dixon, he realized that she was not breathing properly. Blackham realized that she would have to be reintubated as quickly as possible.
A second code was called. Shackleford, a nurse in the cardiac CCU, responded to the code. Shackleford recorded on the code sheet that she arrived in Dixon’s room at 10:30 PM. She testified that Blackham said he had too short of a blade and he needed a medium, a Number 4 MacIntosh laryngoscope blade, which was not on the code cart. The code cart is a cart equipped with all the medicines, supplies, and instruments needed for a code emergency. The code cart in the ICU had not been restocked after the first code that morning, so Shackleford was sent to obtain the needed blade from the CCU across the hall. When Shackleford returned to the ICU, the blade was passed to Taylor, who had responded to the code and was attempting to reintubate Dixon. Upon receiving the blade, Taylor was able to quickly intubate Dixon. Dixon was placed on a ventilator, but she never regained consciousness. After the family was informed that there was no hope that Dixon would recover the use of her brain, the family requested that no extraordinary measure be taken to prolong her life.
A medical negligence claim was filed against Taylor and the hospital. The jury found that Taylor was not negligent. Evidence presented at trial established that the hospital’s breach of duty in not having the code cart properly restocked resulted in a 3-minute delay in the intubation of Dixon. Reasonable minds could accept from the testimony at trial that the hospital’s breach of duty was a cause of Dixon’s brain death, without which the injury would not have occurred. Foreseeability on the part of the hospital could be established from the evidence introduced by the plaintiff that the written standards for the hospital require every code cart be stocked with a Number 4 MacIntosh blade. This evidence permits a reasonable inference that the hospital should have foreseen that the failure to have the code cart stocked with the blade could lead to critical delays in intubating a patient. Accordingly, there was substantial evidence that failure to have the code cart stocked with the proper blade was a proximate cause of Dixon’s injuries.73
Hospitals have a duty to implement and maintain reasonable measures to protect patients from the criminal acts of third parties. However, if an attack and injury to a patient is not foreseeable, the hospital’s actions cannot be the proximate cause of the patient’s injuries.
The patient in Lane v. St. Joseph’s Regional Medical Center
74 was sitting in the emergency department waiting room when a teenage boy, D.G., arrived with his mother. After they had all sat in the waiting room for a short period, D.G. walked up to Lane and began to hit her on her right arm and shoulder. Lane’s son-in-law, who had accompanied her to the emergency room, jumped to her aid and struck D.G., knocking him to the floor. The attack stopped, and nothing further happened. Lane suffered some injuries as a result of the attack.
The evidence in this case depicts a situation in which the attack upon Lane by D.G. was unexpected and that no other evidence was designated to the trial court from which it could have concluded that the specific actions of D.G. on the day in question were foreseeable. The court was bound to conclude that the attack and injury were not foreseeable, that the center’s actions were not the proximate cause of Lane’s injuries, and that the center is entitled to judgment as a matter of law.
12.15 CERTIFICATION OF HEALTHCARE PROFESSIONALS
The certification of healthcare professionals is the recognition by a governmental or professional association that an individual’s expertise meets the standards of that group. Some professional groups establish their own minimum standards for certification in those professions that are not licensed by a particular state. Certification by an association or group is a self-regulation credentialing process.
FAILURE TO PROVIDE ADEQUATE SECURITY
Hanewinckel v. St. Paul’s Property & Liab., 611 So. 2d 174 (La. App. 1992)
The plaintiff, a nurse anesthetist, arrived at the hospital at approximately 5:25 AM. After parking her car and before she shut off the engine, a man jumped into the driver’s seat and began to drive off. The nurse jumped from the car but her attacker caught her and started to beat her. An employee pulling into the parking lot saw what was happening and alerted security. The plaintiff suffered a broken left wrist, 12 teeth either knocked out or broken, severe bruises on her face, and cuts on her legs and knees. She also suffered mental distress from which she had not recovered.
The nurse sued the owner of the parking lot and the security force for breach to protect her from a criminal attack committed on the premises. The trial court found that the defendant had a duty to provide reasonable and adequate security in the parking area and that it had breached this duty.
Did the hospital breach a duty by failing to adequately patrol its parking lot?
The court of appeals affirmed the decision for the plaintiff, finding that the hospital breached its duty to the employee by failing to patrol the parking lot.
The hospital took on the responsibility of maintaining a security force to cover the parking lot. As such, the hospital assumed liability, giving a warranty that, through employment of a security service, their work would be carried out in a nonnegligent manner. The evidence indicated that other witnesses had seen the attacker in or near the parking lot 5 hours earlier in the day, yet no security personnel spotted him. The court found that the security force breached its duty by negligently failing to provide adequate security, which should have included random patrolling of all of the areas. After the attacker was reported to security earlier in the day, nothing other than a brief walk through the lot was done.
12.16 LICENSING HEALTHCARE PROFESSIONALS
Licensure can be defined as the process by which some competent authority grants permission to a qualified individual or entity to perform certain specified activities that would be illegal without a license. As it applies to healthcare personnel, licensure refers to the process by which state licensing boards, agencies, or departments grant to individuals who meet certain predetermined standards the legal right to practice in a healthcare profession and to use a specified healthcare practitioner’s title. The commonly stated objectives of licensing laws are to limit and control admission to the different healthcare occupations and to protect the public from unqualified practitioners by promulgating and enforcing standards of practice within the professions.
The authority of states to license healthcare practitioners is found in their regulating power. Implicit in the power to license is the authority to collect license fees, establish standards of practice, require certain minimum qualifications and competency levels of applicants, and impose on applicants other requirements necessary to protect the general public welfare. This authority, which is vested in the legislature, may be delegated to political subdivisions or to state boards, agencies, and departments. In some instances, the scope of the delegated power is made specific in the legislation; in others, the licensing authority may have wide discretion in performing its functions. In either case, however, the authority granted by the legislature may not be exceeded.
Suspension and Revocation of License
Licensing boards have the authority to suspend or revoke the license of a healthcare professional found to have violated specified norms of conduct. Such violations may include procurement of a license by fraud; unprofessional, dishonorable, immoral, or illegal conduct; performance of specific actions prohibited by statute; and malpractice. Suspension and revocation procedures are most commonly contained in a state’s licensing act; in some jurisdictions, however, the procedure is left to the discretion of the board or is contained in the general administrative procedure acts.
12.17 HELPFUL ADVICE FOR CAREGIVERS
If we do not hang together, we will all hang separately.
—Benjamin Franklin (1706–1790)
Teamwork is the process of working cooperatively with others. In the healthcare setting, caregivers must work together to improve patient outcomes. The healthcare worker today works in an environment where change is the norm. Technological change is occurring at a pace faster then the human mind can absorb, thus requiring teamwork among individuals with a wide variety of skills sets. The following listing provides some helpful advice that will promote teamwork and improve patient care.
• Abide by the ethical code of one’s profession.
• Do not criticize the professional skills of others.
• Maintain complete and adequate medical records.
• Inform the patient of the risks, benefits, and alternatives to proposed procedures.
• Provide each patient with medical care comparable with national standards.
• Be a good listener, and allow each patient sufficient time to express fears and anxieties.
• Foster a sense of trust and feeling of significance.
• Communicate with the patient and other caregivers.
• Seek the aid of professional medical consultants when indicated.
• Obtain informed consent for diagnostic and therapeutic procedures.
• Do not indiscriminately prescribe medications or diagnostic tests.
• Practice the specialty in which you have been trained.
• Keep patient information confidential.
• Check patient equipment regularly, and monitor it for safe use.
• When terminating a professional relationship with a patient, give adequate written notice to the patient.
• Authenticate all telephone orders.
• Obtain a qualified substitute when you will be absent from your practice.
• Investigate patient incidents promptly.
• Develop and implement an interdisciplinary plan of care for each patient.
• Safely administer patient medications.
• Closely monitor each patient’s response to treatment.
• Provide cost-effective care without sacrificing quality.
• Provide education and teaching to patients.
• Participate in continuing education programs.
The Court’s Decision
The parents were offered an out-of-court settlement totaling $200,000. This tragedy might have been prevented if the patient had been screened and triaged by a person competent to determine the patient’s need for immediate care. Failure to assign triage responsibility to a competent individual can lead to lawsuits that involve not only the hospital, but also the supervisor who assigns responsibilities to unqualified staff members. First-level managers who have knowledge of such practices and allow them to occur can also be held liable for negligence.
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