News: A nine-year-old boy complained of ear pain, vomiting, headache, fatigue, sensitivity to light, loss of appetite, and trouble urinating. His parents took him to a hospital for testing. Nurses undertook several tests on a STAT basis, which requires that the laboratory perform the tests and return the results within several hours; however, the lab took six days to return these results, which would show that the patient had an ear infection. During that waiting period, the boy’s ear infection quickly traveled from his ear to his brain, rendering him paralyzed.

The patient brought suit against a hospital, medical associates’ group, and the laboratory, alleging that each entity was negligent. A jury agreed that the providers’ actions fell below the standard of care and returned a verdict for more than $44.5 million.

Background: In 2013, a nine-year-old boy was taken to his pediatric physician several times in one week, complaining of ear pain, vomiting, headache, fatigue, sensitivity to light, loss of appetite, and trouble urinating. The physician and a nurse ordered lab work to be completed on an emergency “STAT” basis because the tests were critical to proper diagnosis and timely treatment. This included an erythrocyte sedimentation rate (ESR) test and a C-reactive protein (CRP) test. According to the lab’s own policies and procedures, STAT tests require that the laboratory return results within two hours. These tests were submitted at 2:30 p.m., and the results should have been returned by 4:30 p.m.

However, the laboratory failed to meet this emergency deadline and did not return the test results for six days. While the physician and family were awaiting the results, the boy’s condition dramatically worsened as the infection traveled from his ear to his brain. The spread of infection caused significant and permanent injury, including permanent paralysis. When the laboratory results finally arrived, they revealed that the boy’s ESR and CRP were significantly heightened.

The boy’s family brought suit on his behalf against multiple entities, including the hospital, a medical associates’ practice, and the medical laboratory. Prior to trial, the family settled with the hospital and medical practice, leaving only the laboratory as a defendant. At trial, the family alleged that the laboratory’s delay fell below the standard of care because the lab owed a duty to run the tests on that same day and within two hours as required by the STAT guidelines. The lab’s delay was thus the direct cause of the patient’s injuries because if the lab promptly conducted the tests and provided the results, the physician would have diagnosed an infection and referred the patient for urgent treatment at a hospital.

Multiple medical witnesses and experts testified at trial, including the patient’s pediatric physician and nurse, who stated that based on the test results, the patient had a likely infection requiring treatment at a hospital. By contrast, the defendant laboratory argued that it was not liable and that even if the test results would have been returned sooner, the quality and manner of care would not have changed.

The lab alleged that the delay did not cause the injury because the physician’s treatment recommendations would not have been any different. One of the defendant’s experts opined that lab results demonstrating elevated ESR and CRP do not require sending a child to a hospital, even with a presumed viral infection. Another expert concurred with the course of treatment and stated that the tests were not of any value in the clinical setting of the patient’s illness, as the tests did not assist with diagnosis.

The jury returned a verdict in favor of the plaintiff in the amount of $24,514,226 for economic damages and $20 million for noneconomic damages, totaling more than $44.5 million. The hospital and medical associates’ group settled prior to trial, and the terms of that settlement are confidential; however, any amounts the patient received from those settlements will likely be deducted from the jury’s award. The jury attributed 50% liability to the lab, 15% to the medical associates, 5% to the hospital, and 30% to a certified nurse practitioner employed by the medical associates.

What this means to you: This case serves as an example to physicians and medical providers that ordering medical tests is not a matter of order and forget. Rather, providers and laboratories must be diligent in efficiently processing tests and returning the results in a timely fashion.

While providers may feel inundated by other patients’ problems, that alone is not sufficient to obviate responsibility to follow up on tests previously ordered. Medical laboratories similarly must identify that laboratories owe a duty of care to patients as well, even if the laboratory is not directly connected to the patient, as is often the case when a physician or hospital is an intermediary. Although laboratories often may appear removed from direct patient care, they are rather a crucial link in the chain that is patient treatment.

This lesson also is instructive for medical care providers who may not interact directly with patients; they still must be cautious and fulfill their duties. The physician and the nurse practitioner who were awaiting the results also had a duty to follow up with the laboratory and, if unable to obtain the results they needed, seek alternative sources of data so that the medical plan of care for the child was developed using the optimal amount of diagnostic information available.

Four different medical care providers in this case were determined to have acted negligently, and this context reveals how a jury evaluating wrongdoing may attribute percentages of liability to parties. Since the lab had the primary responsibility of performing the tests, it is unsurprising that it was determined to have the highest portion of fault, at 50%. The medical associates’ group and an employee nurse practitioner had the next-highest portion of fault, and their negligent actions were predicated on the initial negligence of the laboratory — the jury found that the group and employee failed to follow up with the lab when the test results were not timely returned.

Medical care providers often have little or no option but to work with other providers in order to best provide services to patients. When such cooperation is required, it does not relieve the primary or referring provider of all liability. Instead, providers may have a responsibility to make best efforts of coordination and to follow up with the secondary or referred provider, especially for time-sensitive treatment.

In this case, the medical associates’ group knew that the STAT tests were supposed to be returned within two hours, but they made apparently no effort to check on the status of the results despite the laboratory having grossly missed the two-hour requirement. When the standard of care mandates that a reasonable physician would follow up, especially for an emergent situation requiring prompt attention, failure to do so may constitute medical malpractice.

Another important lesson from this case is the option for settlement. While the plaintiff sued three different entities, two of them settled prior to trial and prior to the imposition of a $44.5 million verdict. The terms of those settlements are confidential, but given the significant size of the jury’s verdict, it is likely that the settlements were much smaller. Alternative dispute resolution, such as mediation, provides a vehicle for parties to pursue settlement discussions, often with the assistance of a neutral third party who may weigh the strengths and weaknesses of cases. Care providers who have been sued should discuss these options with counsel, as settlements may provide invaluable benefits beyond strictly monetary benefits, including the prevention of widespread news coverage that inevitably occurs as a result of public multimillion-dollar verdicts.

To satisfy the duty of care, medical care providers and laboratories should consider processes and procedures to ensure that results are returned when expected. These procedures also should avoid accepting tests when the laboratory lacks the bandwidth to process them in a timely matter. However, as a practical matter and to protect against delayed tests, medical care providers and labs should prepare for such delays.

A procedure by which untimely tests are identified while still in processing and analyzed to see how long any delays are expected, or alternative options such as referring those tests out to alternate facilities for processing, will reduce potential fallout from delays. While this may seem like an onerous proposition, this case illustrates that having a substantial workload does not obviate the responsibility healthcare businesses owe to patients.

REFERENCE

Decided on Sept. 28, 2018, in the Franklin County Court of Common Pleas, Ohio; Case Number 14CV002543.