Legal Review & Commentary

Failure to transfer patient from hospital with inoperable CT scanner leads to death, $1.65 million verdict

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

News: A man presented to the hospital complaining of a painful headache. A CT scan was ordered, but the CT scanner was not working properly. After an hour and a half of trying to repair the machine, staff made arrangements to use a backup CT scanner at an imaging center across the street, but that machine also was inoperable. The man eventually was transferred to another hospital for an immediate CT scan that showed a severe hydrocephalus and a colloid cyst. A neurosurgeon performed an emergency ventriculostomy, but the patient never regained consciousness and died three days later. The man's estate sued the hospital and the various physicians for medical professional liability. A jury awarded the plaintiff $1.65 million in damages, allocating 80% of the fault to the first hospital and 20% of the fault to the ED physician on duty at the first hospital.

Background: A 45-year-old shipping line worker took some over-the-counter medications after experiencing headaches. A few days later, he went to his family doctor, who diagnosed him with a sinus infection and prescribed him antibiotics and a nasal spray. Three days later, the man still was experiencing pain and he called his family doctor. He spoke with a medical assistant, whom he told that his headaches had worsened. The assistant passed the man's complaints on to another physician in the practice, who told her staff to telephone the man's pharmacy and order a prescription of tramadol, a narcotic-like pain reliever.

Two days later, the man awoke in the morning in serious pain. His wife drove him to the hospital, and the man vomited en route. Upon the man's admission to the ED at 9 a.m., the triage nurse reported that the patient had registered pain at 5 on a scale of 1 to 10 and later, at 3 out of 10. The man was seen within an hour by a physician's assistant (PA), who was working with the attending ED physician. The PA noted that the man's headache was moderate and not the worst headache he had ever had, but he nevertheless considered the possibility that the man could have had a brain hemorrhage or increasing intracranial pressure.

The PA consequently ordered a CT scan with the approval of the ED physician. But when the order for the CT scan was relayed to the radiology department a half-hour later, the ED unit secretary was told that the CT scan machine was out of order and that the technicians were working with maintenance personnel to repair it. It soon became clear that the CT scanner could not be rebooted remotely. Thus, radiology staff attempted to use a backup CT scanner that was located in an imaging center across the street. But when the staff went to use the second CT scan machine — about 90 minutes after they determined that the primary CT scanner could not be repaired — they discovered that the backup CT scanner was inoperable as well.

Three hours after the man's initial admission, the man started demonstrating signs of disorientation and confusion. The ED physician was called to stabilize him and, about 20 minutes later, the man's pupils were dilated. The ED physician called for an immediate neurology consult because the man's deteriorating condition indicated that he may have been suffering from a brain injury. When the patient suddenly stopped breathing shortly thereafter, he was intubated.

When the man's condition finally stabilized, staff transferred him via ambulance to a second hospital for an immediate CT scan. The man, however, was in a coma upon his arrival at the second hospital. The CT scan displayed a severe hydrocephalus, or swelling of the ventricles of the brain, that was causing increased intracranial pressure. The CT scan also displayed a colloid cyst that was blocking fluid from leaving the ventricle and causing the hydrocephalus.

By the time the CT scan was performed at the second hospital, the pressure in the man's brain had become so severe that it caused a brain stem herniation. A neurosurgeon was called who performed an emergency ventriculostomy, consisting of the placing of a drain in the ventricle below the skull tap, in order to relieve the excess fluid causing the pressure.

The man never regained consciousness and died three days later. Claiming that the hospital and the various physicians involved in the man's care were liable for negligence that caused the wrongful death, the man's estate sued for medical professional liability.

As for the second family physician who evaluated the decedent's condition, the plaintiff argued that she was liable because she acted on an incomplete history when she addressed his phone call before he went to the hospital. The man's estate argued that had the physician spoken directly with the decedent, rather than through her medical assistant, she would have recognized that his headaches were more serious than she understood when she had her staff telephone his pharmacy to enter the pain reliever prescription. The plaintiff asserted that a complete history would have resulted in the family physician directing the man to either report to the ED immediately or come to her office for a consult.

As for the first hospital, ED physician, and PA, the plaintiff argued that the decedent's coma could have been avoided if the man had been transferred to another hospital in a more timely fashion. The plaintiff argued that the hospital failed to properly train its staff on procedures to follow when the CT scan machine was inoperable and that it was clear that any procedures the hospital did have in place were inadequate. A CT scan, the plaintiff argued, would have provided the hospital, physicians, and staff all of the information they needed regarding the man's urgent situation. The plaintiff also pointed out that the immediate concern should have been the increasing pressure from the hydrocephalus and that a CT scan was needed to diagnose that issue. And finally, the plaintiff argued that the underlying colloid cyst could have been addressed and surgically removed.

The man's estate also sued the attending radiologist, claiming he was liable for negligence by delaying the approval of the man's transfer. The plaintiff asserted that the combined negligence of all the parties led to the decedent's coma and subsequent death.

As for damages, the plaintiff sought compensation in an unspecified amount for the man's conscious pain and suffering leading up to his death. The plaintiff also sought pecuniary damages, as to which the plaintiff's economist estimated that the man's lost wages, based on his last annual income of $52,000, and household services amounted to $1.35 million when reduced to present value.

The family physician defended the claims by arguing that the patient had been seen just three days before he called her and that her partner had diagnosed him with a sinus infection. The physician maintained that it was reasonable to rely upon her partner's evaluation and that it was common for it to take longer than three days for patients to respond to antibiotics when they are prescribed for sinus headaches.

The hospital also defended the lawsuit, pointing out that most hospitals don't have any written policies to address inoperable equipment and that the man's situation required the parties to use common sense. To that end, the hospital maintained that it followed an appropriate procedure and, once the order was given to transfer the man, the staff took immediate steps to transfer him. The hospital also noted that this instance was the first and only time that the hospital's CT scan machines were both inoperable at the same time.

In their defense, the ED physician and his physician's assistant both argued that only the attending physician could order the transfer of a patient to another hospital and there was no need to transfer the man until he decompensated. They argued that the patient's condition was very rare and there was no way for either of them to determine that a colloid cyst was causing increasing pressure on the man's brain. Finally, they argued that the man was stable from a clinical standpoint, and while they realized he needed a CT scan, there was nothing about his condition that indicated the situation was urgent.

The radiologist argued that he was never made aware that a transfer request was made for the man, and that there was no evidence to refute that assertion.

All of the defendants maintained that physicians and hospitals could not be held liable for sudden and unpredictable changes in patients' conditions. They also pointed out that the plaintiff's damages claim for both household services and loss of wages should be reduced to $740,000 given that the man's spouse had remarried since her husband's death and that the man had a serious pre-existing condition that would have inevitably affected his future earnings in an adverse manner.

At the close of evidence, the court granted the radiologist's motion for a directed verdict and dismissed him from the lawsuit. The jury then returned a $1.65 million verdict in favor of the plaintiff. Eighty percent of the award was attributed to the hospital, and 20% was allocated to the ED physician. The jury found that the physician's assistant was not negligent and that the family physician was negligent, but that her negligence did not contribute to the man's death.

What this means to you: "This is a very interesting case for several reasons," says Ellen L. Barton, JD, CPCU, a risk management consultant in Phoenix, MD, "First, while there clearly was negligence in this case on the part of more than one health care provider, the theories of liability asserted miss the mark. Second, this is a classic example of inappropriate reliance on technology. Third, some of the defenses offered were patently ridiculous."

When the patient first saw his family doctor, he presented with a headache. Considering the fact that 99% of headaches are benign, the family doctor's diagnosis of a sinus infection (while wrong) was not negligent given the patient's condition at the time of the visit. However, a small percentage of headaches may involve a lethal condition. Thus, when the patient called the physician's office and spoke to a medical assistant who relayed the conversation to a partner of the patient's family physician, the situation started to go off track. The second family physician should never have relied on her partner's diagnosis without seeing the patient, and she should never have prescribed medications for a patient she had never seen. It is possible that with an appropriate exam, a physician with the requisite skills could have determined that the situation was more than a "headache."

When the patient arrived at the ED, the PA apparently picked up on the fact that when a patient with a headache vomits, there is a possibility of increased intracranial pressure — it is precisely this symptom that needed attention. "However, here is where reliance on technology provides medical personnel with a false sense of security," says Barton.

Clearly, it was not inappropriate to order a CT scan. However, the focus on getting the CT scan obscured basic patient observation. Given the time the patient was in the ED — three hours — before losing consciousness, it is clearly possible that there were other signs that were ignored (or if they were observed, they were not understood). Such signs include abnormal respiratory pattern and dilated pupils. These signs (along with the history of vomiting on the way to the hospital) would have clearly indicated increased intracranial pressure and, more importantly, should have signaled the need to institute measures to reduce intracranial pressure immediately. No CT scan was needed to make that diagnosis.

Given the inaction at the first sign of change in mental status, it is unlikely that anything done after that would have made any difference. What is tragic about this case is that it appears that the PA actually considered the correct issue but did not monitor the patient closely enough because of the distraction of the CT scanner. In Barton's opinion, the CT scan would not have made a difference in this case unless the patient had gotten the CT scan immediately upon arrival at the ED. The colloid cyst is a nonlethal problem that could have been dealt with. The real issue was that the patient was not monitored closely enough, she points out.

The plaintiff argued that the decedent's coma could have been avoided had he been transferred to another hospital in a more timely fashion. That argument would hold only if the second hospital had experienced providers capable of examining the patient to detect signs of change in mental status. Had the focus remained on getting a CT scan, it is unlikely that the outcome would have been different.

The argument regarding the equipment failure is interesting as it is uncertain that the CT scan alone would have made the difference without the understanding of the change in mental status. A CT scan was not at all necessary in diagnosing and treating an increase in intracranial pressure.

The delay in transfer further complicates the situation, again obscuring the need to diagnose the change in mental status as an increase in intracranial pressure.

Clearly, the second family physician was negligent for the reasons stated above. And, to argue that it was reasonable to rely on her partner's diagnosis without seeing the patient is at a minimum unprofessional. The second physician's conduct clearly violated the standard of care.

For the hospital to claim that "most hospitals don't have any written policies to address inoperable equipment" is ridiculous, Barton says. The standard is not what "most hospitals" do; it is what the reasonable course of action under the circumstances is. When equipment becomes inoperable, it is incumbent upon an organization to have backup plans and backup plans to the backup plans. When the main CT scanner went down, the alternate CT scanner should have been checked. This was not done. If it had been done, critical information would have been available much earlier. In this case, as soon as critical equipment becomes inoperable, all "emergency" cases need to be transferred if the patient's condition allows. If this patient had been transferred immediately, a different outcome could have been possible.

Furthermore, for the ED physician and his PA to argue about authorization for transfer misses the point. It was their responsibility to monitor the patient while he was in their care. This was not done. As a result, critical signs were missed which directly led to the patient's altered state of consciousness.

The directed verdict in favor of the radiologist seems appropriate. However, the allocation of the verdict between the hospital and ED physician does not. This appears to have been the result of the focus on the CT scanner rather than the physician's lack of understanding of the patient's deteriorating condition and thus his failure to act to reduce the intracranial pressure.

Finally, the PA does not appear to have been negligent and, in fact, appropriately recognized the possibility of increasing intracranial pressure. And, while the second family physician was clearly negligent, her negligence did not directly contribute to the patient's death.

Hospitals need to do everything they can to assure that equipment is adequate and operable; however, use of technology is not a very good substitute for medical expertise, Barton says.


Case No. MID-L-2447-04, Middlesex County (NJ) Superior Court.