News: On May 14, 2008, a child was born prematurely at a hospital in Las Vegas. She suffered from anemia and was placed under the care of a physician for 11 weeks until she was discharged to the care of her parents and pediatrician on Aug. 2, 2008. The hospital physician did not inform the baby’s parents of the anemia and treated her incorrectly due to a misdiagnosis of anemia of prematurity.

After the child’s discharge, the pediatrician failed to timely administer a follow-up test that the initial physician ordered. The pediatrician eventually ordered blood testing on Oct. 24, 2008, and carried it out on Oct. 28, and the child went into anemic shock the next day. The shock caused diffuse brain damage, which led to developmental delays as well as cortical visual impairment, which made her unable to walk or speak and caused her to be mostly blind. The subsequent lawsuit ultimately yielded a $14.5 million verdict.

Background: On May 14, 2008, a baby was born prematurely at 29 weeks at a Las Vegas hospital. She was placed under the care of a physician for 11 weeks. The premature child was born with anemia, but the physician failed to inform her parents of the disease and treated her incorrectly. The child’s anemia was due to a bone marrow disorder known as Diamond-Blackfan anemia, but the physician incorrectly diagnosed her with anemia of prematurity.

After 11 weeks, the child was discharged from the hospital on Aug. 2, 2008, and put in the care of her parents and a pediatrician. After her discharge, the pediatrician allegedly failed to administer a follow-up test ordered by the initial physician. Blood testing was later ordered at the pediatrician’s practice on Oct. 24, 2008, and carried out on Oct. 28. The next day, the child went into anemic shock, which caused diffuse brain damage that led to developmental delays, leaving her unable to walk or speak. The shock also caused cortical visual impairment, rendering her mostly blind.

The child sued the physician, the pediatrician, and the hospital. The hospital settled out of the case for $500,000. Shortly before trial, the plaintiff made an offer of judgment (i.e., a formal offer to settle the case) for $850,000, which was rejected. At trial, the initial physician argued that his care met the requisite standards and that he did not harm the child. The pediatrician thought the follow-up testing ordered by the hospital physician at discharge was unnecessary. The pediatrician died by the date of trial, but settled the case against him prior to his death for $2 million. The suit only proceeded against the initial physician.

On Dec. 2, 2016, the Nevada jury awarded the plaintiff $14.5 million in damages, allocating 40% liability to the initial physician and 60% liability to the pediatrician. The award covered $1.8 million for past medical expenses, $9.2 million for future medical expenses, and $3.6 million for pain and suffering. The pain and suffering portion will be reduced to $350,000 under the Nevada medical malpractice cap.

Prior to the court verdict, the defendant was granted a hearing by the Nevada Supreme Court following a motion in limine (a procedural motion usually filed shortly before trial in an effort to exclude or limit anticipated evidence). The trial judge rejected the remaining defendant’s position that he was entitled to argue the percentage of fault of settled defendants and to include the settled defendants’ names on the verdict form where the jury could conclude that the settled defendants’ negligence caused some or all of the plaintiff’s injury. The Nevada Supreme Court relied on a 2004 law, Keep Our Doctors in Nevada. However, the statute carved out an exception relating to a defendant’s ability to litigate the comparative fault of parties who previously settled out of a suit. The physician was thus permitted to litigate the comparative fault of the pediatrician, but the ultimate trial verdict, again, was in favor of the plaintiff.

What this means to you: Given the recency of this verdict, the matter may yet be appealed. Nonetheless, this case still illustrates the need for proper follow-up testing, especially with genetic diseases like anemia. The pediatrician believed that the follow-up tests ordered by the initial physician were unnecessary, and this child suffered tremendously as a result. The pediatrician’s decision against testing may well have been caused by a lack of information provided by the other physician.

Traditional communication systems, such as discharge summaries, often are inadequate to communicate patient needs to outpatient physicians. Here, the initial physician failed to communicate the gravity of the anemia to the pediatrician. The fact that the physician failed to inform the parents of the anemia in the first place only exacerbated the situation. To avoid suits similar to this case, it is imperative that hospitals and medical professionals consider moving toward more effective and comprehensive communication mechanisms. The electronic medical record is one mechanism that, if shared by all treating practitioners, can prevent communication errors. Another, more basic tool is the telephone, in conjunction with taking the time to stop and make a critical call to parents, caregivers, or fellow medical professionals. Additionally, consultation with a neonatologist with an expertise in genetic-related prematurity would have been helpful in bringing to light the nature of the infant’s disease and treatment options to all parties.

This case shows that medical professionals ought to take extra care when treating premature babies. Preemies are exceptionally vulnerable and society will likely always feel the need to protect them as especially sympathetic plaintiffs in court when things go wrong in the doctor’s office. Therefore, to conform to the appropriate standard of care, physicians and other medical professionals must exercise the utmost care with premature babies. Additionally, from a strictly financial perspective, future medical costs and pain and suffering often are much costlier for a newborn child with many years to live than for an adult (especially an elderly person).

With respect to litigation procedures, the appeal of the motion in limine makes an interesting point about medical liability. Nevada voters overwhelmingly passed the Keep Our Doctors in Nevada ballot measure in 2004 to deal with a statewide medical crisis. Other states, including California, have enacted similar statutes to secure quality medical treatment for citizens. Knowledge of statutes that give an edge in court is critical for a sound defense and reduction of financial effect for judgments against hospitals and medical professionals, so working with local, experienced, and specialized medical malpractice defense counsel is important.

Statutory damage caps were at play in this case as well. Statutory caps can both help determine the value of cases and act as a bargaining chip for the defense. Juries can be quick to award unjustifiably high judgments in medical malpractice cases, but legislatures may offer protection against the emotionally charged jury.

Here, the offer of judgment from the child’s family was in the amount of $850,000, but the final, reduced verdict against the defendant was still more than $9.5 million. The physician was liable for 40% of that amount, leaving him responsible for approximately $4 million. In contrast, the pediatrician settled for $2 million, even though he was found to be more culpable for the child’s injuries. Clearly, the physician would have been more successful in this case if he settled earlier.

Finally, this case demonstrates the obligation of physicians to discover genetic diseases through comprehensive family-related inquiries. The physician’s misdiagnosis of the child’s Diamond-Blackfan anemia as anemia of prematurity prevented him and the pediatrician from administering appropriate treatment. A standardized, in-depth questionnaire for the parents may have led to a proper diagnosis and prevention of catastrophic brain dysfunction. Hospitals should adopt such surveys to ensure they are shielded from liability by properly diagnosing genetic diseases before they cause irreparable damage to patients.

REFERENCE

District Court of Clark County, Nevada, Case No. A-10-616728, Dec. 2, 2016.