Legal Review & Commentary

Mishandling of fatal lung infection leads to $1.29M settlement in New York

By Jon T. Gatto, Esq.

Blake J. Delaney, Esq.

Buchanan Ingersoll & Rooney PC

Tampa, FL

News: A woman presented to the hospital complaining of left shoulder pain, chest pain, vomiting, and nausea. She was diagnosed with pneumonia and treated with IV antibiotics for two weeks, after which she was discharged. Two weeks later, the woman went to another hospital and was diagnosed with pneumonia and an abscess in her left lower lung. She was treated with IV antibiotics, but repeated recommendations for follow-up X-rays and CT scans were ignored for several days. When a CT scan was finally performed, it showed that the abscess had grown considerably. Doctors attempted to drain the abscess, but when they could not remove all the fluid, surgery was scheduled for the next day. The woman died that night, however, as a result of pneumonia and the lung infection. The woman's husband sued both hospitals and the various doctors for medical malpractice. After jury selection, but before opening statements, all the parties settled for a total of $1.29 million.

Background: A 50-year-old homemaker, who was 4-foot-11-inches tall and weighed 214 pounds, underwent bariatric surgery at a local hospital. Following the surgery, the woman vomited almost on a daily basis. She returned to the hospital three months later complaining of left shoulder pain, chest pain, vomiting, and nausea. She was admitted, and her history of vomiting was documented. She stayed at the hospital for two weeks, during which time X-rays and CT scans were taken, the results of which showed pneumonia, and she was treated with IV antibiotics. Upon her discharge, the woman was not given antibiotics or sent for follow-up care, despite the fact that her pneumonia had not resolved.

Two weeks later, the woman went to another hospital and was diagnosed with an abscess in her left lower lung and a cavitary mass resulting from aspiration pneumonia. A CT scan showed the abscess was 4.3 cm by 2.8 cm at the time of her admission. Her attending physician at the second hospital, an internist, called in an infectious diseases specialist and a pulmonologist, and over the next few days, the team of doctors continued to treat her with IV antibiotics. The woman's infection worsened, however, and the abscess continued to grow.

A week after her admission to the second hospital, the pulmonologist recommended that the woman undergo a follow-up chest X-ray, but the test was not performed. A couple of days later, the infectious diseases specialist evaluated the woman again and recommended that the woman be put on an additional antibiotic and that a follow-up CT scan be performed, but the attending physician did not carry out either of those recommendations. Six days after the pulmonologist first recommended that a follow-up chest X-ray be ordered, the pulmonologist again recommended the test, and this time it was performed. It showed that the abscess had grown. That same day, the infectious diseases specialist again recommended a follow-up CT scan, as did a radiologist, but the scan was not performed.

The woman's condition continued to worsen, and the next day the pulmonologist performed a diagnostic bronchoscopy, which found nothing unusual except for the already-diagnosed pneumonia. The following day, a surgical consult was obtained, and a follow-up CT scan was suggested for now the third time. When the CT scan was finally performed the next day (six days after the infectious diseases specialist had originally recommended the procedure), it showed that the abscess had grown considerably. The doctors then decided to drain the abscess, which resulted in the removal of 40 cc of fluid. After discovering that no more fluid would drain, the woman's physicians decided that she should undergo surgery. The surgery was scheduled for the next day, but the woman died the night before as a result of pneumonia and the lung infection. The organism causing the infection was never diagnosed.

The woman was survived by her husband, a 10-year-old severely autistic son, and a 17-year-old daughter. The woman's husband, acting individually and on his wife's behalf, sued hospitals, the attending physician, surgeon, pulmonologist, and infectious diseases specialist. The plaintiff alleged that the doctors deviated from the accepted standards of medical care by failing to monitor, diagnose, and treat his wife's infection. He alleged that they failed to timely follow through with recommended CT scans and X-rays, which caused them to be unaware that his wife's abscess was increasing in size, and that the doctors should have realized that the first two antibiotics the woman was given were not effective, especially given the fact that she had a history of being in the hospital on antibiotics for two weeks prior to presenting to the second hospital. He contended that because of her prior treatment, the doctors should have known that there was a possibility of growing resistant organisms and that they therefore should have been more aggressive in her treatment. The husband also claimed the doctors should have recognized that the antibiotics were not effective and should have opted to drain the abscess or perform surgery earlier than they did. As for the hospitals, the plaintiff claimed that they were liable for the doctors' actions under agency principles.

The plaintiff sought recovery of damages for his wife's wrongful death and the pain and suffering she endured before she died, as well as loss of household services, to specifically include the fact that it was anticipated that she would have cared for her severely autistic son for the rest of her working life. The plaintiff also presented a derivative claim seeking to recover for loss of society and companionship.

The first hospital defended the suit by arguing that it initially thought the woman's complaints were orthopedic because she complained of left shoulder pain. It contended that it acknowledged that she had an infection and properly treated it with antibiotics, which it claimed resolved the problem. The first hospital argued that she had a normal white blood cell count when she presented to the hospital and that although it rose during her hospitalization, it had returned to normal by the time she was discharged.

The second hospital, the attending physician, and the pulmonologist defended the lawsuit by arguing that the woman was already very sick when she was admitted to the hospital. They claimed that the standard of care was medical management, i.e., treating the infection with IV antibiotics for 10 days to two weeks and monitoring the woman's condition before doing anything invasive. They argued that the woman appeared to respond to the antibiotics and that her illness plateaued during her three-week hospital stay. They further argued that the antibiotics she received were appropriate and that they did not add the third antibiotic as recommended by the infectious diseases specialist because it posed additional risks for the patient. Finally, they contended that there was no reason to do repeated radiologic studies because changes in the patient would be clinically apparent before they would be seen on X-rays or CT scans, and they argued that her treatment was followed step-by-step according to the standard of care.

The surgeon's defense was that the woman was stable at the time he was called and that there were no reasons to rush her to surgery prior to the next day. He contended that at the time he scheduled her for surgery, it was not an emergency.

The case proceeded to trial, but prior to jury selection, the first hospital agreed to pay the plaintiff a settlement of $550,000. After jury selection, but prior to opening statements, the remaining parties agreed to settle the case. The settlement included $390,000 from the second hospital (with an agreement to discontinue the case against the attending physician), $325,000 from the pulmonologist, and $25,000 from the surgeon. The total settlement amounted to $1.29 million.

What this case means to you: "The first question is why the bariatric surgeon allowed her to go so long without some sort of intervention," says Lynn Rosenblatt, CRRN, LHRM, risk manager at HealthSouth Sea Pines Rehabilitation Hospital in Melbourne, FL. Three months out from surgery, she still was not medically stable, as daily nausea and vomiting is not normal even after a gastric reduction/bypass procedure. At her height and weight, she was morbidly obese and at very high risk for serious complications.

So, she now presents to the hospital and is diagnosed and treated for aspiration pneumonia. She has a significant past medical history and comorbid conditions. Her stay was given at two weeks, but there is no indication as to why she was there so long. Fourteen days is an extraordinary length of stay for pneumonia in today's managed care environment, which would suggest that her hospitalization was not a routine case of pneumonia.

No details are given as to any other testing than X-ray and CT scan, but there are facts presented that she was still very sick when she left the hospital. The fact that she was not scheduled for a follow-up appointment, at a minimum, to ascertain that her pneumonia had cleared and that her condition was significantly improved, indicates a violation of a commonly held standard of care.

If she had indeed improved after her release from the hospital, then no further treatment would have been necessary. But how was that to be evaluated without a post-discharge appointment? The attending physician managing her case was remiss in not scheduling her for another appointment after discharge and for not continuing some sort of antibiotic treatment given the apparent severity of the situation.

The failure to do so speaks to the possibility that the woman was being followed by a number of physicians, possibly employed by the hospital, who passed her off among themselves without discussing the case between them, so that all were unaware of the treatment being provided and what further treatment was necessary after discharge. Somehow, the continuity of the care plan was lost and the patient discharged without proper referral and prescription medications.

This is not an uncommon occurrence in hospitals, particularly where more than one physician is involved in the patient's care. This has prompted both The Joint Commission and the Centers for Medicare & Medicaid Services to impose a standard for "pass off." The standard specifically addresses the information that must be "passed off to the next level of care." The standard not only applies when a patient is discharged, but also when a patient is transferred between services within the hospital.

The standard provides greater assurance that the provider accepting responsibility for the patient's ongoing care — even on a short-term basis, as in the provision of a single procedure — is aware of what has transpired and what is planned for future care. In this case, the information would have been "passed off" to the patient and her husband at the time of discharge under the standard.

The nurse or individual acting as the discharging representative of the hospital should have reviewed the physician's orders for any ongoing medications and for any follow-up appointments at the time the patient actually left the acute care facility. The patient should have had any prescriptions reviewed to alert her and her husband to adverse side effects, any food interactions, and an appropriate administration schedule, including emphasis on taking the medication as prescribed. The discharging agent also should have reinforced the necessity of keeping all future appointments and advised the patient and her husband of any signs and symptoms of medical decline and what to expect in terms of recovery.

Obviously, this did not happen. The narrative does not detail what happened or who may have been following the case during the two weeks after discharge when the patient finally went to another hospital with her ongoing illness. What is evident, however, is that her condition was steadily worsening and that the pneumonia that had been previously diagnosed actually was the result of foreign matter in the lung from aspiration, which had resulted in an inflammatory abscess.

It is unclear why the pulmonologist waited so long before doing a bronchoscope as a more definite diagnostic tool. It is also unclear as to what caused the delay in obtaining the various studies as ordered by the attending physicians. Most hospitals have policies about currency of physician orders and how much lead time is required before a test must be scheduled and when it actually occurs. The pulmonologist who ordered the follow-up X-ray after the first week should have written for a stat or timed the order for an immediate film, as such would have assured that the X-ray was prompt and timely.

Unfortunately, that did not occur and no one followed up on the delay. The standard of care that would apply to an ongoing hospitalization of a patient with this diagnosis and history was certainly breached, as the providers failed to provide ongoing supervision of care and interventions that were timely and appropriate to her presentation. The CT scan also was not performed as recommended, and the delay was unjustified because the patient's condition, as the X-ray showed, was clearly deteriorating.

Hospitals must have a system to assure that orders are processed in a timely manner and that the intentions of the physician are addressed in terms of scheduling and follow-through. The failure to monitor the timeliness of scheduling and the results of the procedure falls not only to the physician who wrote the order, but to the hospital staff tasked with assuring that it is done.

There also is no indication as to why the surgical consult was delayed for more than a week. Once the CT scan was completed, it was very evident that the patient's condition had been adversely affected by the delays in obtaining the recommended studies. Ultimately, the abscess was drained of a large quantity of fluid, and it is hard to believe that the patient was not having serious respiratory complications at that point.

Questions abound as to what were her symptoms, her blood laboratory findings, her vital signs — particularly oxygen saturation, temperature, and respiratory rate. Did nursing consistently document her ongoing condition, vital signs, any evidence of respiratory compromise, shortness of breath, patient's complaints, and her endurance? All would be evidence of either a stable or unstable situation, and it does not appear that, if these elements of care were actually being addressed, they were communicated to the physician staff as they should have been. It also raises the issue of how often the physicians rounded on their patients and what information they sought and/or verified with the nursing staff. Finally, the big question is, what the role of risk management or quality assurance in this misadventure?

It would appear that everyone with any responsibility for this patient failed to adhere to recognized standards of case management and medical oversight. The entire system of patient management apparently failed, and as a result this patient lost the opportunity for timely interventions that possibly would have spared her life.

The defense that was advanced by both of the hospitals and by the physicians was rather ridiculous given the situation and the time span that had elapsed from the onset of her situation to her death. Under accreditation standards, The Joint Commission requires a root-cause analysis, which is an in-depth review of the how, why and why not of a set of facts and exactly what went wrong at what juncture. In such a situation, with such dire consequences, such an investigation should have been done.

The most obvious indication that the situation was seriously deteriorating was the time frame where testing should have been completed and acted upon. Time and the failure of the providers to take action were clearly against this patient. Also, the patient was getting worse, but no one was acknowledging any responsibility for communicating with each other as to what needed to be done next and when it needed to be completed.

The case did settle but very close to trial. There is no indication of any attempt on the part of the various providers or their insurance companies to arbitrate or mediate the facts. Had that been done, perhaps the cost of trial preparation could have been avoided and a more equitable settlement may have been possible. The only positive outcome was that the defendants collectively came to their senses and realized that a jury verdict would unquestionably be higher and eventually settled before their dirty laundry could be aired in public.


  • Case No. 27093/04; 14793/05, Queens County (NY) District Court.