News: A female patient presented to a hospital for neck fusion surgery. The day after the surgery, the patient complained of difficulty swallowing, severe neck swelling, and throat pain. She presented to the ED at a different hospital three days later and was admitted at 5:30 a.m. However, she was not seen by the physician until about noon.

The patient suffered respiratory failure, and two physicians — the admitting physician and a pulmonologist — attempted intubation. By the time she was stabilized, the patient had suffered significant brain damage resulting in blindness and loss of coordination and balance.

She sued the hospital and two physicians. The admitting physician settled prior to trial. A jury found that the admitting physician was 100% at fault, but liability was attributed to the hospital as the employer. The pulmonologist was found not liable. The jury awarded $26 million.

Background: A 52-year-old administrative assistant required a common neck surgery after running a 5k race in 2012. She underwent the surgery without incident. However, the following day, she experienced severe neck swelling, throat pain, and difficulty swallowing. A very large bubble appeared to be sitting on her windpipe, causing the difficulties. Three days after the surgery the issues had not subsided, and the patient presented to the ED and was admitted at 5:30 a.m.

According to the hospital’s policy, admitting physicians are required to see patients within two hours. The admitting, on-call physician did not see the patient until nearly noon, allegedly because the patient had not complained about any breathing problems. Furthermore, the admitting physician did not review the patient’s imaging results. During this intervening time, the patient’s condition dramatically deteriorated, and eventually the patient suffered respiratory failure as a result of a postoperative neck hematoma, or blood clot, that closed off her trachea.

A pulmonologist was brought in to assist based on the severity of the patient’s condition. The pulmonologist attempted to intubate the patient but encountered difficulty due to the neck swelling. By the time the patient was stabilized, catastrophic brain damage had occurred; the patient is now blind and has significantly reduced coordination and balance, resulting in confinement to a wheelchair. She has little function in her legs and has difficulty grasping with her hands.

The patient brought suit against the two physicians and the hospital, claiming that the hospital was liable for the employee physicians. Prior to trial, the patient and the admitting physician settled for an undisclosed amount. During trial, the patient alleged that the hospital and admitting physician failed to timely and properly treat the blood clot and that delays in imaging and examination resulted in the botched intubation. The patient’s experts opined that the patient would not have suffered any brain damage if she had been sent to the hospital’s operating suite for intubation under anesthesia in a timely manner. The patient’s experts further claimed that the pulmonologist should not have sedated the patient and that he failed to properly intubate her.

The defendant hospital argued that the admitting physician was immediately available as required and that the patient was constantly monitored by other staff; the hospital claimed that any respiratory distress signs would have been noted immediately. The pulmonologist alleged that he was brought into an already crisis situation, and under those circumstances his care was appropriate. He further argued that he requested, but did not timely receive, assistance from hospital staff.

The trial lasted two weeks, with about two dozen witnesses and multiple experts opining for all parties. After seven hours of deliberations, the jury determined that the hospital was liable for the negligence of the admitting physician, and that the pulmonologist was not negligent at all. The jury awarded $26 million in damages to the patient. Another surprise followed the verdict: The hospital agreed to forgo all appeal rights and pay the full judgment in exchange for the patient withdrawing a request for attorney’s fees.

What this means to you: Delayed diagnosis and treatment are common circumstances that give rise to medical malpractice claims. As with this case, the medical issues involved were not complicated or uncommon. What resulted in a finding of medical malpractice was instead the physician’s failure to treat the patient in a timely manner. While this seems obvious to most physicians and care providers, it is critical to attend to patients, evaluate them, and provide treatment. ED settings such as with this case necessarily include the juggling of multiple patients, each of whom may require immediate action; physicians are not superhuman and cannot be in multiple places at once, so there are times when some delay is unpreventable.

One of the important items discussed in this case was the hospital’s policy for ED admissions and physician review. The hospital’s policy required that admitting physicians see patients within two hours. While such a policy is not determinative of whether malpractice occurred, a physician complying with the policy will appear much more reasonable to any potential jury.

By contrast, the admitting physician in this case reportedly did not see the patient until approximately 6.5 hours after admission. That glaring failure to satisfy the hospital’s policy undoubtedly weighed against the physician, and a reasonable physician given the same or similar circumstances would have seen and treated the patient much sooner to prevent the eventual respiratory emergency and distress.

It is not unusual for hospitals, in an attempt to create policies and procedures that meet regulatory and licensing requirements, to box themselves into a corner by creating restrictive policies that go well beyond minimum requirements. Rather than determining the number of hours required in which a new patient must be seen by the attending, it may be better to use phrases such as “within a reasonable amount of time not to exceed four hours” or similar statements that allow flexibility while still meeting requirements.

Physicians are not the only care providers in hospitals. In fact, most of the time patients are in the hospital, they are under the watchful eye of trained, licensed nurses who act as the eyes and ears of the physicians. These RNs are trained to assess and intervene when patients’ conditions change. Rapid response teams are now required in acute care hospitals. Calling a rapid response code brings high-level expertise to the bedside, including respiratory therapists and intensive care nurses and physicians. Patients with potentially life threatening injuries or illnesses can be quickly assessed and transferred to the appropriate service or level of care even if their attending physician is not available.

Finally, while the admitting physician was found to be liable, the pulmonologist was cleared of all fault. Medical malpractice does not occur simply because of a devastating outcome for a patient. Rather, it occurs when a physician fails to meet the applicable standard of care — that is, when a reasonable physician under the same or similar circumstances would not have acted as this physician did.

For the pulmonologist in this case, he satisfied this standard: He entered into exceedingly difficult and emergent circumstances, but the care he provided was consistent with what a reasonable physician would have provided under those circumstances.


Decided on Dec. 11, 2017, in the Muscogee County Court in Muscogee County, GA; Case Number SC14-CV884.