News: In February 2016, a child fell from playground equipment and struck her head. After her father brought her to an Indian Health Services-operated medical center, staff intubated her incorrectly, resulting in lack of oxygen to the brain and permanent brain injury. Because of this, the child’s brain will never develop past the capacity of a toddler. The child also will require life-long assistance, as well as physical and developmental therapy. The award of $16 million compensates the family for the injuries as well as for the cost of treatment they will incur throughout the child’s life.

Background: In February 2016, a healthy six-year-old girl fell off playground equipment, hitting her head and face on a hard surface. The child suffered a head injury that required immediate medical attention. Her father rushed her to a federally funded hospital where she was seen and evaluated by nurses and the on-call emergency department (ED) physician.

Immediately after seeing the patient, the physician ordered a CT scan and performed a rapid-sequence intubation, administering Ativan, ketamine, and succinylcholine. However, the endotracheal tube was placed improperly. The medication related to the intubation also was administered improperly, depriving the child of oxygen and causing severe anoxic brain damage.

Additionally, no X-rays were taken after the first intubation to confirm the correct placement. A second intubation was performed and followed by two chest X-rays. The first scan showed the endotracheal tube placed in the right main stem bronchus and atelectasis of the upper lung, and the second scan showed the tube had been pulled back. Due to the severe brain anoxia, the child was airlifted to another hospital where she was evaluated and treated.

On March 1, 2016, an MRI was taken. When compared with the original MRI taken Feb. 26, it revealed the patient’s traumatic brain injury caused by global hypoxic/anoxic hypoperfusion insult. The MRI also revealed the injuries to the brain had occurred separately from those resulting from the underlying injury, the playground fall.

The child’s parents filed a medical malpractice lawsuit against the hospital and physicians who initially treated the child and performed the improper intubation. The plaintiffs alleged multiple bases for the purported medical malpractice, including the physicians and staff failed to properly assess the injury when the child first arrived at the ED, negligently administered paralyzing drugs to perform the CT scan, failed to use less dangerous alternatives, intubated the patient incorrectly, failed to confirm the proper placement of the endotracheal tube, and failed to monitor the patient’s condition. Because of the myriad negligence, the child suffered permanent debilitating injuries. She will never live a normal life, and will never develop cognitive functions beyond the level of a two-year-old.

Approximately three years after the plaintiffs filed the lawsuit, the defendants conceded liability and stipulated their negligence caused the child’s anoxic brain injury. The parties further agreed the defendants owed damages for the plaintiff’s pretrial medical expenses in the amount of $500,000. The parties proceeded to trial to determine the remainder of the damages, leading to an award of $16 million.

What this means to you: This case presents a rare occasion where a defendant care provider — a federally funded hospital — acknowledges and stipulates to liability, rather than challenging liability in the first instance. It is a rare occasion, but not without a logical explanation. In this case, the patient presented indisputable evidence demonstrating the defendant hospital’s staff breached the standard of care on multiple occasions during the child’s brief stay at the ED. When faced with this reality, it is reasonable to acknowledge liability and focus defensive efforts elsewhere, such as on challenging the nature and extent of the patient’s injuries and damages calculations.

In this case, the patient was a healthy 6-year-old girl who suffered a relatively minor injury, but the defendant care provider’s negligence caused significant injury to the patient, whose developmental and cognitive skills regressed to the level of a 2-year-old. Scans performed after the second intubation revealed the staff failed to properly position the tube and had to readjust it a third time, which was confirmed by the final scan. The two brain scans clearly excluded the possibility any of the injuries the child suffered resulted from the playground fall. The patient’s experts opined the injuries appearing in the later scan could only be attributed to severe brain anoxia. In light of this evidence, arguing no breach in the standard of care had occurred would have been an impossible task and would have severely undermined any other arguments raised by the defendant care provider.

The second factor that most likely led the defendant to admit liability is the extent of the child’s injuries. Because of the injuries, the child must be supervised at all times, and her verbal ability is extremely limited. Because the injury extended to all areas of her brain, she suffered severe cognitive impairment and cerebral dysfunction, leading to permanent setbacks for every basic function of life, from motor skills to cognitive ability and communication, as well as visual and emotional impairments. The court noted that at the time of trial, the child was 9 years old and required diapers to manage bodily functions, exhibited physically aggressive behaviors toward herself and her caregivers, and did not understand social boundaries.

Under such circumstances, the defendant’s liability was confirmed through the clear link between the child’s injuries and the negligent conduct. Experts confirmed had it not been for the improper intubation and negligent administration of drugs, the child never would have suffered from anoxic brain injuries and would have continued to live and grow as a healthy child.

Respiratory therapists and emergency physicians train for endotracheal intubation. There are several safety checks that must take place to assure correct placement. Intubation of a young child can be especially challenging due to the size of the child’s airway. Assuring the correct tube size is particularly important. Using a meter to detect carbon dioxide exhaled by the lungs is a device that can help assess proper placement. Visualization during the insertion of the tube is used as well. Finally, a confirming X-ray is taken to show exactly where the tube lies within the lung. It is not uncommon to have to pull back on the tube or insert it a bit further to place it properly. But taking the confirmatory X-ray is an accepted standard and commonplace. Blood gas studies can confirm the patient is receiving the appropriate amount of oxygen and ventilation is adequate. These all are standard safety measures used in EDs and intensive care units.

Another important lesson relates to damages: A child with permanent, extensive injuries that affect a variety of aspects of the child’s life is likely to receive a significant award given the ensuing medical expenses. In this case, the amount awarded by the court was calculated on a life expectancy of 81 years and accounted for the nearly three years of caretaking the child’s mother already performed. Even if a defendant care provider acknowledges liability, it remains critical to understand the nature and extent of the patient’s injuries to consult and retain experts who could testify the patient’s interpretation of the injuries is overstated. Retaining a qualified expert to consult and/or testify concerning injuries and damages also can facilitate settlement positions, which is particularly helpful if liability is not disputed. Preventing trial and reaching a mutual settlement without an adverse jury verdict can reduce costs, expenses, and negative exposure.


  • Decided on July 27, 2020, in the United States District Court for the District of New Mexico, Case Number 1:17-cv-00384.