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 (2004-2013), California Hospital Medical Center, Los Angeles, CA

Elena N. Sandell, JD, UCLA School of Law, 2018

News: A widow filed a malpractice action alleging a hospital’s failure to evaluate the patient, which would have revealed extreme respiratory distress. The patient’s death was caused by a lack of oxygen. Experts testified that if the patient had been placed on a ventilator, he would have had a significantly higher chance of surviving his condition, pneumonia. Following a seven-day trial, the jury rendered a defense verdict after a mere 14 minutes of deliberation. The plaintiff brought a post-trial motion seeking to overturn the decision, and the court ordered a new trial.

Background: In September 2009, a 44-year-old man suffered a shoulder injury and was prescribed pain medication by his primary care physician. Following complications from the medication, the patient was prescribed Suboxone to treat an opioid addiction on a monthly basis for approximately three years. According to Centers for Disease Control and Prevention (CDC) guidelines, a pneumococcal vaccine is recommended for patients with a history of substance abuse. Although the patient’s medical history, treatment, and diagnosis met the risk factors set out by CDC guidelines, his physician did not discuss or advise the patient to receive a pneumococcal vaccine.

In August 2013, the patient experienced chest congestion and difficulty breathing, which he reported to his physician. The physician advised the patient to come in for a scheduled appointment the following day. At approximately 3 a.m., the patient sought emergency medical help and called 911; he was transported to a nearby hospital. At the hospital, the patient presented with symptoms of respiratory distress: his recorded breaths per minute was 40, compared to a normal rate of 15 to 20 per minute; his blood oxygen level was initially 97 and subsequently dropped to 94; and his heart beats per minute was > 140.

After the patient arrived at the hospital, he was placed in a bed and his condition was observed as he gradually worsened until he suffered respiratory arrest, which led to his death. The hospital did not perform an arterial blood gas test. Throughout his hospitalization, the patient was left unattended for 12 minutes, at which time the patient coded and most likely suffered the permanent damage leading to his death.

The patient’s surviving spouse brought a medical malpractice action against the hospital, seeking $16 million in damages and alleging that the hospital was liable for the physicians’ negligence under a theory of vicarious liability, whereby an employer is responsible for conduct of the employee. According to the plaintiff’s expert, when a patient presents with these types of distress signs, performing an arterial blood gas test is appropriate to measure the patient’s respiratory status. The defendant hospital denied liability.

After a seven-day trial, the jury deliberated for 14 minutes and found the hospital not guilty. As a result of this expedient deliberation, the plaintiff filed a motion for post-trial relief, arguing that the jury failed to give thoughtful and careful consideration to all the evidence presented. The court granted the plaintiff’s motion and ordered an evidentiary hearing and new trial concerning liability and damages, overriding the jury’s defense verdict.

What this means to you: In this matter, the plaintiff’s expert provided compelling testimony that left little to no doubt as to the fact that if the patient had been placed on a ventilator immediately on arrival to the hospital, the injury leading to his death could have been prevented. The expert opined that the patient most likely suffered the bulk of the anoxic brain injury during a 12-minute period during which he was not supervised by care providers. The patient’s chart confirmed that the hospital staff failed to monitor and record his vitals during this time window, and his condition progressively worsened. If the patient had been intubated prior to coding, hospital staff would have been alerted immediately because the ventilator is equipped with several alarms that sound if even a single breath is missed. According to the patient’s expert, emergency department (ED) staff breached the standard of care by acting negligently in multiple ways throughout the patient’s hospitalization.

The patient arrived at the hospital in respiratory acidosis likely caused by sepsis from bacterial pneumonia. Although the pneumococcal vaccine most typically is prescribed for patients older than 65 years of age, other circumstances justify its administration. Here, it would have prevented the patient from developing the infection. Arterial blood gases would have indicated that the patient was in critical condition and needed immediate intubation and support for his respiratory efforts by mechanical ventilation. Everything that followed the care provider’s failure to rescue this patient was predictable because of the initial deficiencies.

However, another factor may have contributed: The patient had a history of substance abuse. This unfortunate circumstance can be devastating to patients experiencing real life-threatening situations. Many care providers hold a misguided notion that these patients present to EDs not seeking relief from a real disease, but instead seeking narcotics to meet the needs of their addiction. It is an unfortunate circumstance that can complicate care for these patients throughout their lives.

In this instance, the hospital failed to perform an arterial blood gas test upon the patient’s arrival, which would have revealed the severity of the patient’s condition. Second, despite the patient’s chart showing progressively worsening respiratory distress, the hospital staff failed to place the patient on a ventilator, which would have maintained the patient’s oxygen levels by mechanically controlling his breathing. Third, staff failed to supervise the patient during a critical period for 12 minutes, which caused them not to notice that the patient had suffered a severe anoxic episode.

What followed the seven-day trial was surprising, as the jury deliberated for only 14 minutes, far shorter than is typical and a patently insufficient amount of time for any meaningful discussion or evaluation of the facts and law. Despite strong evidence showing that the care providers had acted negligently, the jury returned a verdict in favor of the hospital. While the defendant care providers were satisfied, the plaintiff brought a post-trial motion arguing that the jury shirked its responsibilities and did not deliver a verdict after careful and thoughtful consideration.

It remains unclear whether the patient successfully presented sufficient evidence to establish that the defendant hospital was obligated to supervise the ED physicians and, if so, whether such duty was breached. The care providers argued that there was no relationship between the physicians and the hospital and that the hospital had no duty to supervise. Given the unique procedural issues in this case, this issue remains unsettled. But it is unlikely that the hospital will be able to defer all liability to the individual physicians. Most ED physicians are independent practitioners who contract with hospitals but are not hospital employees and not under hospital supervision. Nevertheless, hospitals cannot evade liability by classifying all care providers as independent contractors, particularly because staff and other support personnel are proper employees and their negligence can give rise to malpractice liability.

The trial court agreed in part with the questions concerning the jury’s conduct, and ordered an evaluation and hearing concerning the jury’s actions and efforts. The trial court also ordered a new trial. Although this case resulted in a mixed determination — initially favorable for the defendant care providers but ultimately uncertain as to the final result — an important lesson can be learned that is applicable broadly to medical malpractice actions. It is critical to evaluate litigation during all stages, from pre-litigation considerations when a patient suffers an unexpected harm and begins to inquire or request records, all the way to post-verdict, as in this case.

A jury’s rendering of a verdict is not necessarily the end of a malpractice case because of appeals. Care providers may be put in the opposite position, whereby a jury rules for a patient — when the evidence does not support that ruling or if the jury rushes the decision. Under these circumstances, an evaluation of the facts and procedures to determine the propriety of post-trial challenges and appeals is crucial. Juries make mistakes or can be reckless in their efforts, but this is precisely why the legal system includes checks and balances to remedy such circumstances. Working closely with counsel is important to assess viable challenges, whether those be factual or procedural, with the trial court or to an appellate court.

Reference

Decided on Oct. 29, 2020, in the Court of Common Pleas of Luzerne County, Pennsylvania, Case Number 2015-7551.