Legal Review & Commentary

Physician's failure to come to hospital leads to settlement with physician, defense verdict for hospital

By Blake J. Delaney, Esq., Buchanan Ingersoll & Rooney, Tampa, FL

News: An elderly woman was admitted to the hospital complaining of constipation and suffering from septic shock. She subsequently suffered an interruption in her gastrointestinal (GI) motor activity, after which she was medicated and transferred to a second hospital for further treatment. After a week at the second hospital, the woman's regular physician went on a weekend trip and left the woman in the care of another GI physician at the second hospital. Over the course of the next couple of days, the woman's condition worsened and was characterized by a hard and distended abdomen. The on-call physician continually failed to come to the hospital to physically evaluate her and instead gave orders to the nurses via telephone. The woman's condition did not improve, however, and she ultimately went into respiratory arrest and died. The woman's family sued the second hospital and the on-call physician for negligence. The physician settled with the plaintiffs for a confidential amount. A jury then returned a defense verdict in favor of the hospital and found that the only proximate cause of the woman's death was the on-call physician's negligence.

Background: A 72-year-old woman presented to the hospital complaining of constipation and suffering from low blood pressure and septic shock. She was admitted to the hospital, and a gastrointestinal consult was ordered. The GI physician determined that the woman was exhibiting decreased bowel sounds, that her abdomen was distended, and that she had developed an ileus, which is a disruption of the normal propulsive GI motor activity resulting from nonmechanical mechanisms. A CT scan confirmed the presence of a colonic ileus.

The next day, the woman began to experience regurgitation. The GI physician evaluated the woman again and determined that her abdomen was distended with decreased bowel sounds. The physician ordered a nasogastric (NG) tube to help alleviate the condition. The physician recommended that the woman be given bisacodyl-rectal suppositories and that she continue to use the NG tube. He also recommended that the woman's electrolytes be monitored and, if abnormal, immediately corrected. He recommended that if the suppositories failed, a type of neostigmine should be administered.

That night, another internal medicine physician rounded on the patient, covering for the first doctor. He evaluated the patient and described her abdomen as distended and tympanic with absent bowel sounds. His plan at that time was to continue support, and he indicated that the woman might require total parenteral nutrition (TPN).

The next day, the first GI physician evaluated the woman again and noted that she was suffering from colonic pseudo-obstruction. He ordered that neostigmine be administered intravenously and that the woman's heart rate be monitored closely. The patient had a liquid bowel movement that night, and her abdomen become soft and less tympanic. The woman's condition continued to improve the next day, when an examination revealed a soft abdomen with positive bowel sounds. The second GI physician evaluated the woman later that day and noted that her abdomen was less distended, the bowel sounds were absent, but that she did pass stool.

Over the next few days, the woman was having spontaneous bowel movements, and her doctors believed that the colonic pseudo-obstruction had resolved for the time being.

The woman was transferred to a second hospital by the first GI physician, where she was given continued medications, engaged in rehabilitation, and was provided with further acute care, including treating the deconditioning that had resulted from her decreased physical activity. The first GI physician, who had privileges at the second hospital as well, continued to monitor her and noted that she was doing well for the first nine days. The GI physician then went out of town for the weekend. The second GI physician from the first hospital, who also had privileges at the second hospital, was asked to cover for the first GI physician.

On that Friday night, the woman began exhibiting abdominal problems. Her temperature spiked, and her abdomen was abnormal in that it was not soft. Nurses attempted to administer the woman a mild narcotic painkiller, but the woman vomited. A nurse paged the second GI physician, but he did not answer. An hour and 15 minutes later, the nurse called the second physician at home, at which point he ordered that blood cultures be taken should her temperature spike again. The nurses apparently did not inform the physician that the woman's abdomen had reverted to being not soft.

The next morning, the woman again complained of abdominal pain, and her abdomen was noted to be hard and distended. The nurse again administered a narcotic painkiller and called for the on-call physician. This time she reminded him that the woman had been diagnosed with an ileus while hospitalized at the first hospital. The on-call physician ordered a milk-and-molasses enema and later, after the woman was unable to eat due to nausea, a second enema was administered.

The woman's pain persisted. She commented to her daughters later that day that it "felt like her stomach was about to explode." In fact, the daughters could not even see their mother's face when they walked into the hospital room due to the massive distention of her abdomen.

At 7 p.m. that day, a new nursing shift took over, and the new nurse noted that the woman's abdomen was hard and distended and that bowel sounds were absent. The nurse called for the charge nurse, who verified the absence of bowel sounds. The nurse called the second physician, telling him that the patient "does not look good" and "I think she needs to be seen." However, the physician did not come to the hospital. Instead, he gave telephone orders that the woman be given an NG tube as well as intravenous (IV) administration of normal saline with potassium chloride.

A few hours later, the woman's heart rate increased, and she became short of breath. The nurse called the second physician again, but he still failed to come to the hospital to physically examine the patient. He gave telephone orders that included telling the nurse to administer an albuterol breathing treatment, a diuretic, and an anticoagulant.

An hour later, the woman went into respiratory arrest. The second physician arrived at the hospital while cardiopulmonary resuscitation (CPR) was in progress, and a code was called. She was pronounced dead 30 minutes later. An autopsy revealed that the woman's recurrence of the colonic pseudo-obstruction, or colonic ileus, caused her colon to massively expand until it reached the point that it ruptured. The contents of her colon subsequently spilled into her abdominal cavity, which led to respiratory arrest, cardiac arrest, and death. The first GI physician returned from out of town the next day, at which point he completed a death certificate that listed the immediate cause of death as a perforated viscus, which is a hole or tear in the wall of the gastrointestinal tract, from colonic pseudo-obstruction.

The woman's family sued the second hospital and the second physician in federal court for medical malpractice and wrongful death. The plaintiffs claimed that the second physician was negligent in, among other things, failing to properly consider and respond to critical details of the woman's recent past medical history, specifically her ileus, failing to physically examine the woman at any time during the last two days of her life, and ordering a milk-and-molasses enema for a patient with a recent history of a colonic pseudo-obstruction who was at high risk of re-obstructing.

As for the hospital, the plaintiffs argued that the hospital's nurses failed to recognize the symptoms of bowel obstruction and failed to timely report those symptoms to the second physician. They also claimed that the nurses negligently failed to question the second physician's failure or refusal to come to the hospital to physically examine their decedent or take action to obtain an immediate examination or transfer her to the emergency department. The woman's widower asked for damages of $100,000 for past mental anguish and $100,000 for future mental anguish. Each of the woman's children asked for damages of $50,000 for past mental anguish and $50,000 for future mental anguish. The family also sought punitive damages up to $2 million.

Shortly after the lawsuit was filed, the plaintiffs settled with the physician for a confidential amount. The case proceeded against the second hospital, which denied the plaintiffs' allegations and contended that its nurses used ordinary care, called the physician as they should have, received orders, carried them out, and reported the results to the physician. The hospital insisted that it was up to the doctor to decide whether he needed to see the patient personally. The hospital also argued that the woman's pre-existing conditions, and the unforeseeable complications resulting from those conditions, caused the unfortunate occurrence, not their negligence. The hospital said the woman had been hospitalized for a month with numerous potentially fatal complications and that there was no proof that she died because of the hospital's negligence.

A jury returned a defense verdict in favor of the second hospital and found that the only proximate cause of the woman's death was the on-call physician.

What this means to you: Even though this scenario did not result in a finding of liability against the hospital, there is plenty that a hospital risk manager can learn from it. "This fact pattern touches on an area of nursing and hospital care that is often not taught in the classroom: that is, how nurses should communicate and interact with physicians to provide the highest level of care possible to patients," says Trish Calhoun, JD, of Buchanan Ingersoll in Tampa, FL.

In this case, almost immediately after the care for the patient was transferred to the second GI physician, the nurses felt the need to inform the doctor of the patient's worsening condition. But the physician did not respond to the nurse's initial attempt to contact him by pager.

"It is all too easy for a nurse to give up or question him or herself when faced with a non-responsive physician," says Calhoun. "Nurses need to be trained to continue to follow up. I give credit to the nurse for being persistent and eventually getting through to the physician, even if it was an hour and 15 minutes later."

A second aspect of the nurse-physician relationship implicated by this fact pattern is how to handle physician orders that are questionable. In this regard, Calhoun points to two telephone orders given by the on-call physician. First, considering that constipation usually is not the cause of an obstructed or pseudo-obstructed colon, the doctor's milk-and-molasses enema order is curious. Second, when the patient's condition clearly was worsening later that night, it is unclear what the physician was thinking when he ordered the albuterol, diuretic, and anticoagulant treatment.

"Without more facts, it is difficult to determine what exactly the physician was thinking in terms of diagnosis and treatment," says Calhoun. "But the more important point is the training that should be provided to nurses if they find themselves questioning a physician's orders."

Although the physician is the one who has the medical training and licensure to make such decisions, nurses gain a wealth of knowledge as a result of their day-in-and-day-out work. If a nurse really disagrees with a physician's orders, Calhoun suggests that a procedure be put in place whereby the nurse can report to a supervisor, who then can communicate with the appropriate individual to assess the situation, whether it be the chief of the department or someone in administration.

A third piece of the puzzle in terms of the physician-nurse relationship is the one that presented itself most significantly in this case: the doctor who refuses or fails to come to the hospital to see a patient. "Nurses act as advocates for patients, while at the same time acting as the eyes, ears, and hands of the doctors," says Calhoun. In that regard, nurses are expected to call doctors to inform them of their patients' statuses. The nurses in this case seem to have done a good job calling the physician and providing him with information to allow him to make orders. But Calhoun recognizes that nurses often find themselves trying to balance the fine line between calling the physician and not wanting to call too often, especially, as in this case, at night. Any time a physician refuses or fails to come to the hospital to see a patient, the nurse is put in a tough spot, says Calhoun. Especially when a physician is nonresponsive, abrupt, mean, or belittling, nurses can become hesitant in continuing to call, she says. However, part of nursing judgment is knowing when a call to the physician is warranted.

"It's a delicate situation when dealing with a physician who will not come into the hospital to see a patient," Calhoun says. "Contrary to the patient's allegations in this case, the nurse does not have the authority or the ability to force the physician to come in to see the patient."

With that being said, risk managers need to ensure their nurses are trained to respond appropriately to such situations so that the patient's well-being is not adversely affected. In this case, the nurse who came on for the 7 p.m. shift on Saturday arrived with a fresh perspective and immediately recognized that the patient needed to be seen by a doctor. She appropriately contacted her charge nurse, and it seems as though the charge nurse recommended calling the physician back for further orders.

Calhoun notes that other options when faced with a nonresponsive physician include calling hospital administration to get the process moving or calling another doctor who has been consulted on the case, assuming of course that that physician specializes in something related to the patient's problem. Although more facts are necessary, it appears that had the day nurse in this case been more aggressive in asking the physician to come in, the NG tube and IV line could have been started earlier, which might have saved this patient's life.

Calhoun points out that it is not always clear how nurses should chart their discussions with a physician who is nonresponsive or who fails to come into the hospital. On the one hand, if the nurse charts the fact the she told the physician that the patient needs to be seen but that the physician refused to come in, the nurse better be prepared to explain what he or she did to follow up. On the other hand, if the conversation is not fully documented, there will be questions regarding exactly what the nurse communicated to the physician. The best practice, Calhoun suggests, is to include chartings such as "informed physician of change in condition" and "informed physician of serious nature of condition," but that it is never wrong to chart verbatim what is said to the physician. In that case, however, the nurse must be prepared to call a supervisor to help get a physician to the hospital, which did not occur in this case.

"Even though the hospital in this scenario was ultimately absolved from any wrongdoing, I can imagine the case would have proceeded differently had the physician not settled with the plaintiff out of court," speculates Calhoun.

If the physician remained as a defendant, it might very well turn out that his recollection of the phone conversations he had with the nurses at the hospital would not corroborate the story told by the nurses. "Especially in situations involving a physician who refuses or fails to come into the hospital to see a patient, the places where the doctor's story could, and I would assume would, diverge would be as to what the nurse said on the phone," says Calhoun.

In these cases, the medical chart becomes the key to determining what actions were taken by the hospital and whether those actions were appropriate. The hospital won this case because the nurses continually called the doctor to inform him of the patient's condition. In that regard, the hospital deserved the defense verdict it received.


  • United States District Court for the Eastern District of Texas. Case No. 5:06-cv-00259.