By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles, CA
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services
California Hospital Medical Center
Los Angeles, CA
UCLA School of Law
JD Expected May 2020
News: A female patient visited a hospital complaining of mild constipation. The treating physician ordered a CT scan for the patient. The hospital administered an intravenous dye to enhance the CT results.
The patient suffered an allergic reaction to the dye and almost immediately lost consciousness. The physician administered only Benadryl during the first 45 minutes. After 45 minutes, the physician treated the patient with epinephrine; however, the patient had already suffered severe brain damage. The patient ultimately succumbed to the brain damage later that evening.
The patient’s estate and her children brought suit against the physician and hospital, claiming that the delay in treating the patient with epinephrine was negligent and caused the death. The patient’s attorney asserted that absent the delay in treatment of epinephrine, the patient would have survived. A jury returned a $29.5 million verdict in favor of the plaintiffs.
Background: The patient, a 40-year-old mother of four, presented to a local clinic, complaining of mild constipation. The treating physician ordered a routine CT scan. The patient was administered intravenous contrast dye to better highlight blood vessels, organs, and other internal structures.
Minutes after the dye was administered, the patient suffered an anaphylactic reaction, losing consciousness and going into shock. She was treated only with Benadryl during the first 45 minutes of the reaction, and the physician failed to take the patient’s vital signs as well. The patient suffered severe hypoxic brain damage.
Approximately 45 minutes later, the physician treated the patient with epinephrine after her heart stopped beating; however, she had suffered severe, irreversible brain damage from which she later died. Her husband and four children thereafter brought suit against the hospital and physician, alleging malpractice.
During trial, the plaintiffs’ expert contended that the physician’s failure to timely administer epinephrine fell below the applicable standard of care owed to patients and that had the physician administered this drug earlier, the patient would not have suffered the brain damage. The plaintiffs’ expert also contended that the physician’s failure to assess the patient’s vital signs constituted malpractice. The hospital and physician categorically denied these contentions, claiming that timely administering epinephrine would not have prevented the injury and subsequent death.
The jury found in favor of the plaintiffs, with a verdict of $29.5 million to her husband for loss of consortium and to her children for the loss of their mother. An appeal from the hospital and physician is pending.
What this means to you: This serious injury and significant verdict demonstrate the requirement not only that hospitals must create effective policies and procedures for patients experiencing adverse outcomes but actually implement and follow those procedures. The jury, in finding for the plaintiff, affirmed that minor mistakes can create major damages and malpractice liability. Here, the plaintiffs’ expert convinced the jury that Benadryl is not an adequate response when a patient loses consciousness because of an allergic reaction. Further, the expert convinced the jury that physicians must proactively take and monitor vital signs, particularly when the patient is in distress.
While the injection of contrast dye during diagnostic radiological procedures is common, allergic reactions to the contrast medium also are common. Before proceeding, it is incumbent on the physician to ask the patient if he or she has any allergies, especially to foods like shellfish or drugs that contain iodine. If the patient is allergic, he or she is at high risk of allergic reaction to the dye.
Even if the patient claims to not have allergies, physicians and staff should anticipate and be prepared for allergic reactions; drugs and equipment required for an immediate response must be readily available. Someone, most likely the treating physician, should be trained in advanced cardiac life support (ACLS) and must be prepared to implement the appropriate care in case of an unexpected reaction. If such a significant allergic reaction occurs and the patient loses consciousness, mechanical and/or chemical resuscitation should begin immediately.
Hospitals should ensure that staff are trained to maintain the patient’s ventilation and circulation until the medications given to reduce the patient’s allergic response take effect. It also is critical that the patient never be left alone during the administration of the contrast. Staff must frequently and regularly ask the patient how he or she is feeling. Any unusual symptoms may require that contrast administration stops and rescue efforts start immediately. Epinephrine is typically the first drug used.
Assessing for an increase in respiratory rate and pulse, cold clammy skin, chest pressure, or pain is essential once an allergic response is noticed. A crash cart filled with emergency drugs and supplies is essential. A defibrillator for addressing a possible cardiac arrhythmia or arrest is essential as long as staff are trained to use it. While many radiology departments do not have all of these items in every room, they should be close enough to access quickly with a notification system in place to send equipment and trained staff to the patient right away.
This case also shows that physicians should avoid thinking that a normally safe medication is incapable of causing severe side effects, particularly when something is overlooked or missed. The jury recognized that merely because a chemical rarely causes side effects does not mean the chemical cannot cause side effects. Although contrast dye rarely produces this degree of harm, once an allergic reaction is noted, the physician should immediately begin treatment, anticipating and/or expecting that the reaction may get worse before it gets better. Physicians owe a duty of care to patients to ensure the remedial efforts provided both address the reaction and do no further harm. In this case, Benadryl was insufficient and the physician and hospital’s failure to timely realize this fell below the standard of care.
Another insight from this case is for insurers. The plaintiff here contended that the parties were unable to settle because the insurer’s counsel believed that no jury in the rural area where the case was being tried would award a significant sum, a position that proved incorrect. Also, according to the plaintiffs’ attorney, the insurance company thought rural juries would not feel comfortable awarding a verdict of this degree and consequently refused to settle, telling the jury that, even if the jury were to find for the plaintiff, the plaintiff was only entitled to several hundred thousand dollars. Based upon the sizeable verdict, the jury rejected this suggestion.
This verdict shows hospitals, physicians, insurers, and counsel that the involvement of a rural jury does not always equate to judgments worth pennies on the dollar and, as a corollary, that multimillion-dollar judgments are not the exclusive domain of a jury composed of city-dwellers. Egregious facts remain egregious facts even when considered by a rural jury, and here the jury clearly thought that no mother should die from a routine CT scan. Hospitals and physicians may consider retaining independent counsel even when an insurer bears the primary coverage and provides counsel. An independent counsel may ensure that the insurance-appointed counsel continually acts in the insured’s best interest and avoids expensive mistakes such as rejecting settlement talks because of an erroneous assumption that a jury will not feel comfortable awarding a significant sum based on incorrect assumptions.
Decided on June 14, 2018, in the District Court for Sioux County, Iowa; 33 Nat. J.V.R.A. 8:3.