Legal Review & Commentary: Delay in transfer results in death: $5 million awarded
Legal Review & Commentary: Delay in transfer results in death: $5 million awarded
By Jan J. Gorrie, Esq., and Seema PatelBuchanan Ingersoll Professional Corp.
Tampa, FL
News: Following a seemingly minor automobile accident, a passenger was taken to the emergency room and admitted for overnight observation. Her condition worsened, and the next morning, she was transferred to a trauma center for emergency surgery. She died 31 days later due to complications from the delay in treatment. The Ohio jury awarded $5 million.
Background: The Ohio State University professor was a passenger in the back seat of an automobile involved in an accident. She was wearing the only available restraint, a lap belt without the shoulder strap. At the scene of the accident, she had no visible signs of injury, but complained of stomach pains. She was transported by ground ambulance to the local community hospital, where the emergency room physician, who subsequently consulted with a surgeon, evaluated her.
She was admitted for observation, and her husband left the hospital thinking that he would take her home the next morning. The surgeon left no orders for further testing or for a serial physical examination. Because the facility did not have a CAT scan with contrasting capabilities, none was ordered. During the night, her condition worsened. The nurses called the surgeon several times. He said she would be fine until the morning and that he would be in to see her then.
When the surgeon arrived in the morning and examined her, he detected what he believed to be a tear in her mesentery, which is a double layer of peritoneum attached to the abdominal wall and enclosing in its fold a portion or all of one of the abdominal viscera conveying to its vessels and nerves. The surgeon recommended that she undergo emergency surgery. The patient’s husband asked that she be transferred to one of the two nearby trauma centers so that the surgery could be performed there; these more sophisticated services were a 40-minute drive away. She was air-evacuated to one of the centers. However, severe sepsis already had developed, and the contents of her bowels had emptied into her stomach. Despite the surgery, she died at the trauma center hospital 31 days later.
The plaintiff alleged that the hospital held itself out as a place a person could receive adequate emergency care and treatment. The plaintiff also alleged that in order to assure the delivery of such emergency care, the hospital should have had protocols requiring more extensive testing, and that if the facility was unable to have the requested tests and follow-up performed, the protocols would have addressed the need to transfer. The plaintiff maintained that the community hospital surgeon was negligent in not performing sufficient tests and medical examination either prior to or after admission and for not responding more quickly to and acting upon the change in her condition.
The community hospital surgeon maintained that at the time of transfer, the patient was doing well, and that if any negligence were involved it should be on the part of the trauma surgeon and the trauma center. The trauma surgeon testified as to the patient’s poor condition upon arrival at the trauma center. The jury found the community surgeon negligent and the community hospital vicariously liable; it returned a verdict of $5 million.
What this means to you: This case focuses almost entirely on the practice of medicine and provides a serious caution for physicians treating cases in the emergency department setting.
"When the patient looks good,’ the physician can more easily overlook the bad,’" observes Ellen L. Barton, JD, CPCU, a risk management consultant in Phoenix, MD. "The fact that the car accident was described as a relatively minor one unfortunately might have created a mindset in the physician so that he wasn’t as thorough as he should have been, and the examination and testing were not as probing as they should have been. Clearly, some remedial continuing education would be helpful. The fact that the patient had been wearing only a lap belt and immediately complained of stomach pains should have signaled the need for careful and thorough examination of the abdomen and, if indicated, the need for a CAT scan. Since the facility did not have the appropriate equipment, a transfer should have been arranged in a timely fashion.
"The lack of appropriate equipment raises a corporate liability issue. Hospitals and other health care facilities should always be in a position to treat patients with necessary medical equipment or be able to arrange for their transfer to facilities that have such equipment, if they do not have what is necessary to treat or assess the patient," adds Barton.
"Finally, the fact that the physician’s response to repeated calls from nursing staff was less than adequate and, in fact, appears callous. Protocols for medical response to nursing concerns need to be in writing and clearly understood. For example, if nursing staff felt that the physician was not responding appropriately, they could have used a chain-of-command policy to contact the medical director or chief of staff or some other resource that would have addressed the nurses’ concerns and possibly saved the patient’s life," she concludes.
Reference
• Lyons v. Clarkson, Franklin County (MO) Court of Common Pleas, Case No. 97808-7796.
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