By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles

Jamie Terrence, RN

President and Founder, Healthcare Risk Services

Former Director of Risk Management Services 

California Hospital Medical Center

Los Angeles

Nathan Jamieson

UCLA School of Law

JD Expected, May 2020

News: In 2006, a mother gave birth to her son at a hospital. The baby was premature but otherwise healthy. He was discharged normally 48 hours after his birth.

However, after discharge, his health quickly declined and the mother brought her baby back to the hospital. During an operation, technicians had trouble properly inserting an IV line. Once the IV was inserted, the child began to turn blue and appeared to suffer hypoxia, a lack of oxygen to the brain. This hypoxia caused the child to suffer cerebral palsy and significant cognitive impairments. The technicians delayed notifying the hospital of the child’s failure to breathe in contravention of policy.

The mother and child brought suit approximately 10 years later, alleging that the hospital employees’ actions fell below the standard of care and caused the child’s significant injuries. The hospital maintained that it provided treatment consistent with the applicable standard of care. After a three-week trial, a jury returned a verdict for the plaintiffs of more than $130.5 million.

Background: In 2006, a baby boy was born prematurely but was otherwise healthy, and he was discharged from the hospital 48 hours later. However, his health quickly began to decline. Two weeks after his birth, the mother brought her baby back to the hospital for further testing. After an ultrasound, a physician diagnosed the infant with hydronephrosis, a urological condition that causes mild kidney swelling. The physician also diagnosed the child with lupus; however, a physical examination and ECG showed no cardiac involvement.

Several weeks later, the infant underwent a renal examination at the same hospital. During the examination, the technicians experienced difficulty connecting an IV line and struggled to identify a vein. Once it was inserted, the mother reported, the boy’s condition worsened dramatically. The child immediately turned blue and experienced difficulty breathing. The technicians conducted mouth-to-mouth but failed to check the child’s pulse or provide chest compressions. The technicians also failed to alert a Code Blue, which would have triggered a more thorough and necessary response for emergency resuscitative efforts. This would include the option of using defibrillators and other advanced technology as necessary.

The mother and child brought suit in 2016, alleging that failure to initiate a Code Blue, check the child’s pulse, and provide chest compressions constituted actions below the standard of care and caused the boy to suffer a lack of oxygen and blood to his brain, creating a hypoxic ischemic injury. During trial, the plaintiffs argued that the child developed cerebral palsy several months after the negligent treatment and as a result of the inadequate care the child received. Because of the cerebral palsy and brain damage, the child cannot walk or move unassisted and suffers significant intellectual deficiencies. The child will require significant and expensive medical care and assistance, including a full-time caregiver, for the remainder of his life as a result of these injuries and conditions.

What this means to you: A few important lessons can be learned from this case. First is the doctrine of respondeat superior, where an employer is liable for the actions of an employee when the actions of the employee arise during the course and scope of the employment.

Under this concept, both the employer and employee are liable for actions of the employee; however, as a practical matter, an injured party tends to seek relief only from the employer, who almost inevitably has the “deep pockets” from which to recover monetary damages. In this case, the mother and child brought suit against the hospital as a result of the actions of the technicians, who were hospital employees.

It follows that hospitals, clinics, and any care provider who is an employer must be particularly cautious and provide adequate employee training, supervision, and oversight. Doing so will help to ensure that patients are provided care within the applicable standard and, it is hoped, prevent medical malpractice claims from arising. Employer care providers should maintain thorough guidelines, standards, employee handbooks, and other relevant written documentation, and provide all of that documentation to employees.

Employers also should periodically evaluate the knowledge and efficacy of employees to ensure they have read and understood applicable policies. Annual competency evaluations of all hospital employees are required if these facilities receive government funds for services provided to patients.

While very unlikely that the insertion of the IV itself was the cause of the child’s respiratory arrest, it is much more probable that the child had an anaphylactic reaction to the contrast media that was injected through the IV line. While this contrast media is used to enhance visualization of internal organs for ease of interpretation, allergic reactions to it are not uncommon.

Since, in this case, the newborn patient likely had no history of an allergy to contrast, the hospital staff had a duty to be both well-trained and prepared to respond to it. Thorough documentation of such policies and the employer’s efforts to ensure employee training will serve as useful evidence if any medical malpractice case arises where an injured patient alleges that an employer’s policies fall below the applicable standards of care.

Additionally, an employer may use such written policies to argue that an employee’s actions deviated so significantly from those as to be beyond the scope of employment. Such arguments may be difficult to make if the employee clearly was acting with the intent to provide medical care to a patient, but having well-developed written policies and procedures in place may better substantiate such arguments.

Furthermore, having the appropriate emergency equipment available is effective only if staff members know how to use it. Facilities commonly fail to assure this. Technicians are not licensed to provide the same level of care as physicians and registered nurses, but they can be trained to perform certain procedures under the supervision of a physician or nurse. Hospitals must assure that the medical staff oversees the rules, regulations, and policies that delineate who can do what, under which circumstances and under what level of supervision. It is a complex process that can lead to disastrous outcomes when it is not well-executed.

Finally, the delay between the injury and lawsuit in this case merits discussion. While the child in this case was injured shortly after birth, litigation began approximately 10 years later — well after the child’s injuries had become apparent and the child required medical care. It is not clear why the mother and child delayed filing suit, as they could have brought their claim immediately after recognizing the injury.

Nevertheless, in cases involving injured minors, the law typically permits such delayed litigation, providing additional time to file suit. This is known as “tolling,” which suspends the statute of limitations until the injured party turns 18. Statutes of limitations and rules regarding tolling vary by state, but it is reasonable to believe that in cases similar to this one, many courts would allow litigation well beyond normal filing deadlines.

For healthcare providers, this may impose financial and insurance burdens beyond maintaining records and witnesses for more than 10 years. Providers and risk managers should familiarize themselves with these legal concepts, for a party injured early in life may appear many years later, and liability may still be assessed despite the passage of time.


Decided on Sept. 24, 2018, in Oakland County, Michigan; Case Number 2016-151195-NH.