Legal Review and Commentary

Failure to provide treatment by 7 doctors and 1 hospital leads to death and $1.35 million settlement

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

News: A woman suffering from severe discomfort in her mouth and throat area presented to the emergency department (ED) for treatment. Over the next two days, doctors passed the patient around as they refused to respond to their on-call duties and simply failed to handle the woman as their own patient. Despite test results and symptoms suggesting airway obstruction, the woman was discharged, only to return again the next day. Doctors failed to realize that more substantial treatment was required and continued to treat her with antibiotics and other medication. When an oral surgeon finally realized that some of the woman's teeth needed to be extracted, he performed the surgery and left for vacation. The woman continued to struggle to breathe, however, and after she was passed on to several more physicians, she eventually stopped breathing and died. The woman's estate sued all of the providers involved in the decedent's care, and the parties settled the case for $1.35 million.

Background: A 38-year-old woman presented to the ED complaining of a sore throat and swollen lymph nodes. Noting swelling in the patient's neck, dental decay, tenderness in the mouth, and lockjaw, a doctor called for the on-call oral surgeon and then ordered blood work, an X-ray of the woman's mandible, and a CT scan of her neck. The results of the tests showed a large amount of gas under the woman's tongue and beneath her lower jaw, as well as two abscesses. The ED doctor prescribed ibuprofen for pain, but when that did not seem to work, he prescribed morphine. Then, realizing that the on-call surgeon had failed to respond, he called for the backup oral surgeon. Now five hours after the woman initially had presented, the backup surgeon arrived and ordered that the patient be admitted to the hospital.

Once admitted, the woman was given nalbuphine for her pain and antibiotics to treat her possible infection. Several hours later, hospital staff noted that the patient was having difficulty swallowing liquids, and the original on-call surgeon was again called. He ordered over the telephone that additional antibiotics be administered immediately. But when the woman continued to complain of increased swelling and fears of not being able to breathe, the oral surgeon was called for a third time. The surgeon still failed to report to the hospital to visit the patient, however, and instead told the nurse to call an ear, nose, and throat (ENT) specialist. The ENT doctor ordered over the telephone that a steroid and a different antibiotic be administered to the woman.

The woman awoke the next morning unable to swallow her own saliva. Nurses gave the patient a suction catheter, and the ENT specialist was summoned again. Finding the patient to be suffering from acute distress with muffled speech, a swollen floor of the mouth, and difficulty handling secretions, the ENT physician ordered that a sore throat spray be administered. He also told the nurses to summon the on-call oral surgeon again, but the surgeon failed to come to the hospital for another two hours. When he finally did arrive, he discharged the patient and gave her a prescription for an antibiotic and pain medication, even though she still was having difficulty swallowing.

The next day, the woman returned to the hospital, still in pain. The oral surgeon was at the hospital, and he concluded that four abscessed and decayed teeth needed to be removed. Because the surgeon had plans to leave town that afternoon, he wanted to perform the surgery that day in his office. He obtained clearance from the woman's family doctor to perform the extraction using intravenous sedation, and following the procedure, he sent the woman home with prescriptions for lithium, antibiotics, and an anti-inflammatory.

The woman again returned to the ED, suffering from shortness of breath, chest pain, a sore throat, a toothache, fluid collection in the alveoli, swelling under the tongue, difficulty swallowing, and swelling of the jaw and face. An ED doctor noticed that she could open her mouth only 2 cm and that her voice was muffled. The physician diagnosed the woman as suffering from Ludwig's angina, a bilateral spreading inflammation of the tissue beneath the skin and area under the tongue. The doctor then called another oral surgeon, who came to the hospital within a half-hour and admitted the woman for observation. The surgeon prescribed two antibiotics and gave orders that the patient's head be raised while she lay in bed and that an oral suction device be provided for her use.

As the woman was waiting for a bed assignment, a nurse documented increased anxiety and complaints of being unable to breathe. A second ED doctor ordered a breathing treatment and called the oral surgeon who had just been consulted, who suggested that the problem was anxiety that could be treated with a benzodiazepine. The second ED doctor did not follow that recommendation, however, and left the woman as found.

A short time later, a nurse summoned the second ED doctor again due to the woman's complaints of shortness of breath. This time, the doctor ordered a neck X-ray, which revealed a collection of air and pus within the patient's pharynx. A respiratory therapist began providing humidified oxygen and advised the oral surgeon of the woman's condition, but the surgeon gave no orders.

Ten minutes later, the ED physician called the oral surgeon again and told him that the woman was continuing to suffer from severe respiratory distress. The surgeon ordered that morphine be administered intravenously every four hours, and he told the ED physician that the woman was not his patient and that the first oral surgeon (who was originally on-call, but who was now out of town) should be called instead. The woman then was moved to a critical care room, where nurses administered racemic epinephrine.

The woman stopped breathing 10 minutes later, but the swelling prevented subsequent attempts to intubate her. Doctors then attempted to make an emergency incision through her skin and membrane to secure her airway for relief of the upper airway obstruction, but that also was unsuccessful because the landmarks had been obliterated by the swelling and the air column could not be located. Doctors finally established a tracheostomy 16 minutes later, but the lack of oxygen already had caused profound and irreversible brain damage. The woman remained alive on life support for 12 days before the artificial measures were ceased.

The woman's estate sued the three ED physicians, the three oral surgeons, the ENT specialist, and the hospital and its nursing staff for negligence. Before the case proceeded to trial, the case settled for $1.35 million.

What this means to you: "This entire case is prime material for a Grade B horror movie," says Lynn Rosenblatt, CRRN, LHRM, director of quality and risk management and HealthSouth Sea Pines Rehabilitation Hospital in Melbourne, FL. Although the woman in this case presented with obvious poor oral hygiene indicative of self-neglect, her acute respiratory difficulties did not appear to have caused any alarm. As her condition continued to deteriorate and as her symptoms became increasingly more severe with complex consequences, the patient was unable to rally any effective treatment. "Yet her condition was life-threatening and extremely serious," she notes. "Such neglect screams of total disassociation between the patient and her health care providers."

The patient presented with a classic case of Ludwig's angina, a condition that has been well-documented in medical literature since the 1800s. The condition causes an infection of the oral-pharynx, producing a massive swelling leading to respiratory compromise. According to Rosenblatt, 75%-95% of cases are caused by serious periodontal disease, with the remaining cases attributed to other highly suspicious causes, such as diabetes, intravenous drug abuse, and HIV-positive serology. Many Ludwig's angina patients are young adults with rather dubious lifestyles. Ludwig's angina carries a mortality rate of 8%-10%, with death most often caused by airway obstruction. While Ludwig's angina is not as common since the advent of modern dentistry and the development of wide-ranging antibiotics, it still is prevalent in certain classes of patients. Rosenblatt questions, therefore, how an ED physician, ENT specialist, and two oral surgeons could have examined the patient on several occasions without diagnosing the ailment.

In any presentation of this type, the provider must consider that the patient will eventually suffer airway obstruction, leading to respiratory insufficiency or even total arrest. If and when that occurs, intubation or tracheostomy is the treatment of choice. Rosenblatt notes that the literature on Ludwig's Angina indicates that in 90% of cases, anticipatory or emergent airway management is essential to survival. In this case, however, such management did not happen until the woman was in severe respiratory distress.

When the woman first arrived at the hospital, the doctor acted appropriately by ordering blood tests, an X-ray, and a CT scan. But he then apparently did not initiate any antibiotics, even though the woman's presentation suggested infection. There also is no indication of exactly what the staff nurses were doing to assess and promote further attention to the seriousness of the patient's condition. Rosenblatt suspects that the nurses were not monitoring the woman's condition as strictly as the situation warranted. But if they were monitoring appropriately, then it does not appear that the results of that monitoring were being communicated in such a manner as
to get the attention of the doctors. After all, the physicians who were apparently managing the case — namely the oral surgeons — totally disregarded the Ludwig's Angina diagnosis and its implication, even though airway management in this disease is paramount. "Even with the classic presentation and the diagnosis of a condition with a predictable and very serious prognosis, none of the interventions were serious attempts to stabilize the patient and treat her symptoms appropriately," says Rosenblatt.

The problems continued when the on-call oral surgeon did not respond, causing the patient to go without a surgical consult for more than five hours. Rosenblatt questions the time frame for an on-call physician to respond to a patient who has presented to the ED with an obviously serious situation. "The hospital's medical staff rules and regulations should outline specific parameters for responding to call. Time frames should be spelled out based on the type of consult ordered and the nature of the patient's situation, with ED patients receiving top priority," notes Rosenblatt. In fact, standards promulgated by the Joint Commission on Accreditation of Healthcare Organizations require that a hospital's medical staff policy address the timeliness of consults and interventions. "This was rapidly becoming a medical emergency, but no one seemed to be accountable for that determination. It appears that the patient was treated no differently than if she had presented with a bad skin rash," says Rosenblatt.

She also suggests that the lack of response by the on-call oral surgeon should have attracted more attention from the hospital's ED and nursing staffs. "Many busy [emergency departments] establish protocols for repetitive reassessment of a patient, thereby creating documentation that will serve as the basis for interdisciplinary interventions," Rosenblatt says. "If this was occurring, apparently no one was paying attention."

When the patient finally did receive treatment, she was in so much pain that she required morphine. The administration of intravenous morphine to a patient in respiratory distress concerns Rosenblatt, however, considering that it slows the respiratory process, and this patient already was suffering from inadequate oxygen intake. "The nurses should have noticed any evidence of dyspnea, such as rapid breathing, use of accessory muscles, and cyanosis. These symptoms are indicative of a full-blown emergency," advises Rosenblatt.

It was only at this point that intravenous antibiotics were initiated for the patient. Rosenblatt notes that there is no indication that the medication selected had the right spectrum for what was most likely an anaerobic organism. "In a fumigating infection of this type, such a long delay in initiating treatment can have dire consequences," says Rosenblatt. Indeed, much of what was ordered was based on telephone conversations, thereby raising questions as to the accuracy and currency of information being passed between the physicians and the nursing staff.

The case took a rather unorthodox turn when the surgeon decided to perform oral surgery in his office on a patient who was at considerable risk for respiratory arrest and who was experiencing serious life-threatening complications. "Is it any wonder that many states are passing laws regarding surgical procedures in physician's offices?" asks Rosenblatt. "Clearly the oral surgeon in this case was motivated by his own personal convenience as opposed to what was safe and appropriate for the patient." Based on the oral surgeon's conduct throughout this case, Rosenblatt is suspicious of exactly what information regarding the patient's situation was conveyed by the surgeon to the woman's family physician. Rosenblatt also notes that attempting such a procedure with intravenous sedation in an office setting without emergency backup was incredibly risky and it shows very poor professional judgment.

When the women returned to the ED after her oral surgery, even though she was finally diagnosed with Ludwig's Angina, the professionals involved seemed to be ignoring the reality of the diagnosis and her clinical presentation, Rosenblatt says. The visible swelling of the woman's mouth and tongue, her inability to substantially open her mouth, and her difficulty in speaking warranted a higher standard of assessment and treatment than was provided. "This patient was clearly on the verge of total respiratory failure. Her symptoms of chest pain, shortness of breath, and anxiety are classic to respiratory compromise. Given the history, the diagnosis, and the declining respiratory function, a decision to protect the airway — most likely by tracheostomy — should have been made," advises Rosenblatt.

As this case demonstrates, a failure to properly diagnose can be the basis of expensive litigation, Rosenblatt cautions. But even in light of the $1.35 million settlement, Rosenblatt is confident that a verdict would have been even higher. "Considering that each defendant violated reasonable standards of care so egregiously, punitive damages certainly would have been awarded if this case had gone to trial. This patient clearly commanded more value in death than she did when alive," she says. And in addition to the civil litigation arising from this case, Rosenblatt only can imagine the actions taken by the state regulatory agency, the various medical boards, and internal peer review and quality assurance committees within the facility itself.

Rosenblatt questions whether the reason the woman in this case received such appalling care was because of her financial status. It may be that the reason none of her providers wanted anything to do with ensuring that she received the proper treatment was because they lacked any financial incentive. "If so, that would be a sad commentary on our health care delivery system to the economically disadvantaged, and an even greater stain on society as a whole. In the end, it was a needless and tragic waste of life," concludes Rosenblatt.


• Anonymous Case in Superior Court, North Carolina (Wade Byrd, Fayetteville, NC; Donnie Hoover, Charlotte, NC; and Sally Lawing, Greensboro, NC, for the plaintiff).