Legal Review & Commentary

Settlement in hypoxic injury case

By Jon T. Gatto, Esq.

Buchanan, Ingersoll & Rooney, PC

Tampa, FL

Barbara Reding, RN, LHCRM, PLNC

Citrus Memorial Health System

Inverness, FL

News: A woman presented at a hospital emergency department with complaints of headaches, blurry vision, and shortness of breath. Her work-up included a CT scan of her head, chest X-rays, and routine blood tests. She was released later with a diagnosis of a type of headache and possible anxiety. Three days later, the woman was found unconscious and taken to another hospital, where she was admitted to ICU and placed on a ventilator. Six days later, the patient was intubated. Following the extubation, the woman was found to be in distress and the woman sustained a profound hypoxic injury. All of the parties settled prior to trial.

Background: A 30-year-old cosmetologist complaining of a headache in the frontal portion of her head, blurry vision, and shortness of breath presented to the ED of a local hospital. She was triaged as urgent, and the ED staff did a work-up, which included a CT scan of her head, chest X-rays, and a routine blood test. Several hours later, she was released with a diagnosis of cephalgia, possible hyperventilation, and possible anxiety reaction.

Three days later, the woman was found unconscious and was rushed via ambulance to a second hospital, where she was admitted to the intensive care unit. She was intubated and put under the care of a pulmonologist. Five days later, the hospital staff attempted to wean the woman from the ventilator, but attempts were unsuccessful. The next day, the pulmonologist ordered that the woman be extubated but did not order arterial blood gases. Fifteen minutes later, the woman was extubated.

Within hours, the woman's oxygen saturation became unstable, falling to as low as 90% at one point. Although noted in the woman's chart, the nurses did not notify the pulmonologist of the woman's status. Along with this, the nurses noted that the woman became combative and agitated and had trouble managing thick, brown secretions. Two-and-a-half hours later, the woman was found to be in distress, a code was called, and CPR was performed. Her pulse was restored, but the woman had already suffered a profound hypoxic injury. The woman stayed at the hospital for another 13 days, when she was transferred to an extended care hospital. She lives in a persistent vegetative state on a ventilator and is fed through a gastronomy tube.

The woman's brother, on behalf of the woman's estate, sued both hospitals and the pulmonologist. Counsel for the plaintiff argued that the first hospital should have completed a more thorough work-up which, if done, would have led to the woman's hospitalization and could have prevented further deterioration. A review of the woman's arterial blood gases, the plaintiff argued, would have informed the pulmonologist that extubation was improper.

In the case against the second hospital, the plaintiff focused on the nurse's failure to appreciate the deteriorating nature of the woman's condition and the failure to report the woman's status to the pulmonologist. The plaintiff requested $5.5 million to compensate plaintiff for future lost earnings and lifetime care. The parties settled for $4.05 million, with the first hospital being responsible for $50,000 and the second hospital responsible for $4,000,000.

What this means to you: Hypoxia is a condition where there is a deficiency of oxygen in the body. It may be caused by environmental factors, such as high altitudes or toxic chemicals; illness such as pneumonia or COPD; or by a restriction in blood supply due to constricted or blocked blood vessels. Signs of hypoxia include elevated blood pressure, elevated heart rate, rapid breathing, cyanosis, poor coordination and/or judgment, stupor, and lethargy to name a few. Symptoms may include headache, dizziness, euphoria, visual impairment, nausea, air hunger, hot and cold flashes, tingling, and mental and/or muscle fatigue. Left untreated, hypoxia may lead to unconsciousness, organ failure, and death.

In this case, a 30-year-old cosmetologist presented to the ED of a local hospital and was triaged as urgent, with symptoms of a frontal headache, shortness of breath, and visual impairment. A CT scan of the head, chest X-ray, and a "routine" blood test were ordered. Given the patient's age, occupation, and symptoms severe enough to cause the patient to seek evaluation and treatment in an emergency setting, an in-depth assessment including oxygen saturation monitoring and an arterial blood gas (ABG) to measure blood pH and acid-base balance would have been prudent. The patient demonstrated signs and symptoms of hypoxia. Discharging a patient from the ED with the diagnoses of cephalgia (headache), "possible" hyperventilation (vs. shortness of breath, which begs the question as to the cause), and "possible" anxiety reaction once again prompts the question of the physician "on what did you base your diagnoses?" Use of the word "possible" insinuates an incomplete assessment or guess. The plaintiff understandably argued that earlier and appropriate diagnosis and treatment of this patient could have prevented negative outcomes.

Three days after her discharge from the local hospital, the patient was found unconscious and rushed to another hospital via ambulance. She was intubated and admitted to the ICU. Five days after intubation, attempts to wean the patient from the ventilator proved unsuccessful. On the sixth day, the pulmonologist assigned to her care ordered extubation. No ABG studies were ordered prior to extubation, and the patient was extubated within 15 minutes of the physician's order. The patient deteriorated, coded, and survived CPR. The patient now remains on a ventilator and in a vegetative state.

The Agency for Healthcare Research and Quality has conducted studies regarding the criteria for weaning from mechanical ventilation, seeking scientific information from agencies and organizations on which to base clinical guidelines, performance measures, and other quality improvement tools. The Institute for Healthcare Improvement continues to research and report evidence-based practices regarding weaning from mechanical ventilation. Volumes of information regarding such criteria are readily available and easily accessible. Weaning and extubation protocols from hospitals throughout the country and the world are but a fingertip, e-mail, or telephone call away. Extubation protocols consistently apply the use of pulse oximetry for a minimum of eight hours post-extubation. Protocols also indicate that if a patient's SpO2 remains below 90% for 20 minutes, the physician must be notified.

When multiple attempts to extubate have failed, the wise and prudent physician should seek diagnostic evidence to assist in determining cause for the failure. Protocols for extubation include assessing level of consciousness, muscle strength, respiratory mechanics such as a spontaneous respiratory rate less than 30 breaths per minute, ABG results, oxygen saturation rates, and hemodynamics, such as a heart rate less than 120 per minute. To even consider extubation without a complete assessment and evaluation of a patient's readiness is simply reckless and demonstrates disregard for the well-being of the patient.

Failure to communicate the patient's change in status also contributed to the tragic outcomes for this patient. A change in patient status warrants immediate notification to the physician in charge of the patient's care. There is no defense for failure to notify. The wise and prudent nurse not only monitors his or her patient's condition throughout their shift, but also recognizes those changes in patient status that may lead to a need for medical or surgical intervention and then immediately reports those changes.

The pivotal points in this case rest in assessment, evaluation, and failure to communicate.


• Anonymous Parties, Superior Court of San Bernardino County (CA), Rancho Cucamonga.