Legal Review & Commentary: Failure to timely administer Acyclovir in patient with viral encephalitis yields $23 million verdict
Legal Review & Commentary
Failure to timely administer Acyclovir in patient with viral encephalitis yields $23 million verdict
By Jonathan D. Rubin, Esq. Partner
Kaufman Borgeest & Ryan
New York, NY
Laura A. Russell, Esq.
Associate Attorney
Kaufman Borgeest & Ryan
Valhalla, NY
Carol Gulinello, RN, MS, CPHRM
Lutheran Medical Center
Brooklyn, New York
News: A 36-year-old woman was transported to the emergency department (ED) at 12:55 p.m. after exhibiting symptoms consistent with a viral infection. A lumbar puncture was performed, the results of which revealed herpes viral encephalitis. Acyclovir was ordered stat; however, the nurse on duty did not administer the medication until three hours later, by which time the patient had become comatose. The patient is now severely mentally handicapped and requires 24-hour care. The patient's sister brought a lawsuit against the hospital on her behalf and alleged negligent care. The jury returned a verdict of $23 million against the hospital.
Background: A 36-year-old woman was transported to the ED at 12:55 p.m. with complaints of altered mental status, left facial droop, aphasia, fever, and disorientation. She was seen by the ED physician at 1:15 p.m., who documented an initial diagnosis of altered mental status with plan to rule out encephalitis. A neurology consult was obtained at 3:30 p.m. and a lumbar puncture was performed at 4 p.m. with results consistent with herpes viral encephalitis. The patient was admitted and examined by an internal medicine physician in the ED at 6 p.m. The case was discussed with an infectious disease physician at 6:30 p.m. who directed that Acyclovir be ordered stat. However, the internal medicine physician placed the order without urgency, and the medication was not administered. At 7:30 p.m., the infectious disease physician arrived to examine the patient, noted that Acyclovir had not been administered, and ordered the medication stat at 8 p.m. The nurse on duty, however, failed to administer the medication until 11 p.m., by which time the patient had become comatose. The patient remained hospitalized for three weeks and then was transferred to an inpatient rehab facility where she underwent cognitive therapy for severe short-term memory loss. She is unable to perform simple tasks or live independently, and requires 24-hour care.
A lawsuit was filed against the hospital, ED physician, internal medicine physician, and infectious disease physician by the patient's sister on her behalf. The plaintiff alleged the defendants failed to diagnose and timely treat the patient's viral encephalitis and failed to timely administer Acyclovir. Plaintiff's counsel argued that administration of Acyclovir is the standard of care for even the suspicion of viral encephalitis and should have been immediately administered to the plaintiff. Plaintiff produced an infectious disease expert who testified that the patient's viral symptoms had manifested to her brain with the development of facial drooping, and that the window of opportunity for proper treatment of her condition was closed when the defendants allowed her condition to deteriorate in the ED.
The physicians denied the allegations and argued that an earlier administration of Acyclovir would not have changed the plaintiff's outcome. The defense asserted that the patient's symptoms were consistent with multiple conditions and that the diagnosis was reached promptly after testing. The internal medicine physician contended that she properly carried out the suggestion of the infectious disease consultant by including in her admission orders the order for the administration of Acyclovir, and that there was no standard of care which required her to substitute her judgment for that of the infectious disease consultant by writing a stat order. The internal medicine physician further denied that the infectious disease consultant recommended the medication be ordered stat. The hospital, however, never produced an explanation for the nurse's delay in administering the Acyclovir.
The defendants' infectious disease expert testified that herpes viral encephalitis is extremely rare, with only about 1,500 cases occurring per year in the United States, and noted that the condition mimics many other disease processes. The expert further testified that the alleged delay in the administration of Acyclovir had no bearing on the patient's condition because about 65 doses over several weeks is required to kill the virus.
The case proceeded to a jury trial with only the hospital, ED physician, and internal medicine physician remaining as defendants. The jury determined that all of the defendants were negligent, but it attributed 100% of the causal negligence to the hospital and awarded the plaintiff $23 million in damages.
What this means to you: This scenario raises many questions regarding the manner and sufficiency of communication between providers. Specifically, this case raises questions with respect to the adequacy of communication between the internal medicine physician and the infectious disease physician during their first encounter at 6:30 p.m. when the recommendation was to order Acyclovir "stat." It leads us to question why an internal medicine physician would call a consultation with a specialist and not take the recommendation of that specialist. In addition, this case raises concern as to why the nurse delayed in administering life-saving medication.
Although it is not a requirement for the referring physician to follow the recommendations of a consulting physician, there should be documentation in the medical record outlining the reasoning behind that decision. A comprehensive note can allow interested parties to "get into the mind" of the practitioner and can assist in the defense of their actions.
Additionally, there is no evidence cited in this case that any healthcare provider followed up to ensure the medication was, in fact, administered. It is the physician's responsibility to follow up, not only on the outcome of any diagnostic tests he/she may have ordered for the patient, but for any medications that have been ordered, especially in light of the urgency to treat a potentially grave diagnosis.
It is a nursing custom and practice that a stat medication order is administered between 30 and 60 minutes upon retrieval of the order. Of course, extenuating circumstances might intervene; however, those circumstances must be handled quickly and efficiently and documented in the medical record. Had such documentation occurred in this case, we might have learned of the reasoning behind the delay in medication administration. Unfortunately, the etiology of the three-hour delay, from the 8 p.m. stat order until the 11 p.m. administration of that drug, remains unexplained.
In some cases, a delay in administration of a medication can be caused by the need for a "pre-approval" in pharmacy before a drug can be dispensed. That pre-approval is usually the responsibility of a physician leader in a medical specialty. This pre-approval holds true for drugs that are not on formulary, are in limited supply, or are potentially deadly when not ordered properly. However, this is not the case with Acyclovir, which is considered an unrestricted antibiotic, the dispensing of which would not be questioned.
Moreover, it is considered good practice when verbal communication occurs between the ordering and the administering practitioner, especially as it relates to stat orders. Clear and succinct communication between team members ensures the continuity and timeliness of care.
It is imperative that risk managers be called upon to conduct a comprehensive and thorough investigation of any case where there is an adverse patient outcome. Only then can the timeline, fact pattern, and ultimate strategy to defend the case be fully realized.
Reference:
Court of Common Pleas of Philadelphia County, Pennsylvania. Case No. 081204060. 2011 WL 3154263.
News: A 36-year-old woman was transported to the emergency department (ED) at 12:55 p.m. after exhibiting symptoms consistent with a viral infection. A lumbar puncture was performed, the results of which revealed herpes viral encephalitis. Acyclovir was ordered stat; however, the nurse on duty did not administer the medication until three hours later, by which time the patient had become comatose.Subscribe Now for Access
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