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California Jury Awards $12M to Woman With Brain Injury From Air Rifle
News: A young woman presented to the emergency department (ED) of a hospital after being shot in the head with an air pellet rifle. Almost half an hour passed between the time the woman was seen by the ED nurse and the time the nurse informed the ED physician of the woman's condition. The ED physician saw the woman and ordered an X-ray, which revealed a bullet in the woman's brain. About four hours passed between the time of the woman's arrival in the ED and the woman's transfer to a second hospital with neurosurgery capabilities. In the meantime, a CT Scan was ordered. Shortly after the CT Scan, the woman was transferred to another facility, where she underwent emergency surgery, but did not wake up and has remained in a persistent vegetative state since. The jury awarded $12 million in California.
Background: A 22-year-old female honors student studying to be a police officer presented at the ED of a local hospital after being shot in the head with an air pellet rifle. The woman's cousin drove her to the hospital and provided the ED registration desk with information regarding the injury. The woman arrived at the ED at 7:40 p.m. The triage nurse saw the woman around 7:45 p.m. and noted that she was alert and awake with a wound to the area around her right temple. Due to the ED being at full capacity, the woman was placed on a chair next to the triage desk, so she could be monitored. At 8:20 p.m., the ED physician ordered a skull X-ray. The X-ray was taken around 8:45 p.m. and showed a bullet in the woman's brain. The X-ray technician noted that the woman seemed lethargic and notified the ED doctor. The ED physician requested the staff to begin calling other area hospitals with neurosurgeons to see if any of them might accept the transfer.
The ED physician then proceeded to ask questions of the woman's cousin. Due to the cousin's suspicious responses, the local sheriff's department was called. Once a bed opened up in the ED, the woman was moved and assessed for cognitive function. The physician noted that the woman was somewhat dazed but able to follow commands with normal pupil response. Upon examination, the physician also noted a 7 mm puncture wound with swelling on the right side of the woman's head above her eye. Around 9:15 p.m., the physician ordered a CT scan of the woman's brain. The CT technician was not readily available in the hospital and, pursuant to hospital policy, had one hour to arrive. No information was provided to the CT technician that the patient was in critical condition. Because of a possible delay in transfer, the physician decided to intubate the woman around 9:35 p.m. after administering two different drugs to sedate her. He also administered another drug to help reduce the swelling. The woman was then placed on a ventilator.
The CT technician arrived around 10:15 p.m. and completed the scan by 11 p.m. An air ambulance was called at 10:41 p.m.; the patient left the ED at 11:50 p.m. and arrived at a new hospital around midnight. The ED physician at the second hospital examined the patient and wrote a note at 12:10 p.m., indicating that the woman's left pupil was pinpoint and the right pupil was 3 mm and fixed. Another CT scan was ordered and completed. A consulting neurosurgeon saw the patient at 12:50 a.m. and noted that the woman's right pupil was fixed and dilated.
Surgery began on the patient at 1:41 a.m. A bleeding cortical blood vessel at the site of the entry wound was found along with severe swelling of the brain, causing a herniation into the mid-brain. The physician stopped the bleeding and removed part of the skull to relieve pressure, but the patient failed to wake up and continues to be in a vegetative state. The woman has resided in a skilled nursing facility since late 2007 and is fed through a gastrostomy. She is unable to work and has a life expectancy of 12 years.
A lawsuit was filed on behalf of the woman against the first, transferring hospital. The plaintiff alleged that there was a discrepancy in the time of arrival at the ED and that the patient actually arrived 40 minutes earlier than is documented. Attempts were made to obtain the ED surveillance video, but the footage had been erased. The ED nurse's notation indicated that the woman's injuries were "urgent" as opposed to "emergent." Plaintiff's counsel argued that the ED staff should have immediately notified the on-call physician regarding the woman's condition. The defense countered by claiming that "gunshot victims do not walk into an ER." A "late entry" nurse's note was entered stating that the ED nurse notified the ED physician about the woman at 8:05 p.m. However, this did not explain why the X-ray was not ordered until 8:20 p.m.
All of the parties agreed that once the ED physician determined that transfer was necessary, immediate communication with the necessary parties should have commenced to effectuate the transfer. The time of 10:15 was noted for a call regarding the transfer, but no further information regarding the content of that call was entered into the record. Standard practice required the hospital to contact the local transfer center before initiating a transfer. The ED physician recalled discussing the woman with the second hospital but could not recall who he spoke with or at what time. The charge nurse in the ED testified that she believed a CT scan should have been done before the transfer.
The treating neurosurgeon testified that the injury was minimal, but that, over time, bleeding caused increased pressure in the brain, which damaged deeper structures in the brain. The plaintiff's expert neurosurgeon testified that had the woman gotten to surgery by 11:30 p.m., she would have survived the injury with the ability to feed and care for her self, but that she would not have been employable due to the brain injury.
The defense countered that the medical record, the only hard evidence on the subject, showed that the patient arrived at the ED at 7:40 p.m. and that classification of her injury as "urgent" was well within appropriate standards. The defense relied on the notion that transfers generally take time, in some instances up to several hours, and that all necessary steps were taken to expediently arrange for the transfer. The hospital argued that the charge nurse did not have the authority to delay the transfer in order to obtain a CT scan and, therefore, did not do so. The defense's neurosurgeon testified that the surgery done at the second hospital simply saved her life and did not improve her condition and that her condition could not and would not have improved, even if the woman had been transferred sooner. The ED physician was dismissed from the case on summary judgment, and the defense argued that such a dismissal effectively precluded the plaintiff from pursuing the hospital as a defendant. With respect to the destroyed surveillance tapes, the defense argued that there was no deliberate intent to evade the plaintiff's request for the tapes. Rather, counsel for the defense did not receive the search warrant for the tapes until after the tapes had been erased, or more than 30 days after the incident.
The parties participated in mediation pre-trial, but the amounts were not agreed to by the defense. The jury found that the hospital defendant was fully liable and awarded the plaintiff $372,740 past-care costs; $10,645,230 future-care costs; and $1 million in economic damages. The jury's vote was 11 to 1 on negligence and 11 to 1 on damages. The defense has plans to appeal the verdict.
What this case means to you:
As stated above: "the ED nurse's notation indicated that the woman's injuries were "urgent" as opposed to "emergent." Plaintiff's counsel argued that the ED staff should have immediately notified the on-call physician regarding the woman's condition. The defense's retort that "gunshot victims do not walk into an ER" represents a serious error in judgment. This may well be the initial sentinel event that led to a cascade of delays that caused irreparable harm. Likewise, according to Patricia S. Calhoun, JD, RN, Buchanan Ingersoll & Rooney PC in Tampa, "[t]he nurses decision to make the patient 'urgent' instead of 'emergent' demonstrates why it can be helpful for certain diagnoses to be treated according to accepted protocols in the ER." For instance, if all gunshot wounds were treated the same way (i.e., stabilize, then X-ray affected area when stable), this patient still could have been left sitting near the desk, but would have gotten the skull X-ray much sooner.
While the time of arrival was a controversial issue in the ensuing case, it is merely an item that would have established an extended delay that certainly adversely influenced the outcome. The fact that treatment was delayed based on the triage nurse's assessment that the case was urgent rather than emergent carries more weight, as it set the patient on a course that was adversely neglectful of standardized ED responses.
Gunshot wounds are by nature emergent. The unseen damage done by a projectile fired into a bodily cavity is far more than just an entry/and/or exit wound. The nurse was provided with information regarding the nature of the injury and how the mishap occurred. This was not an injury with a single bullet, but rather the result of an air gun loaded with pellets. There may have been a single entry wound, but most likely no exit wounds, as the "bullet" actually released multiple small pellets that dispersed within the woman's brain as opposed to passing straight through.
Consideration of the type of weapon and the expected trajectory of the bullet, as well as the type of explosive it actually was, is essential to an accurate evaluation of the situation. Had that nurse been trained in a basic understanding of firearms from the various types of injury that they can impart, she would have made an entirely different call.
Basically, this was primarily a closed head injury, which had been caused by a gunshot wound; and in that regard it warrants the same response as a brain hemorrhage caused by a fall or an auto accident. While many gunshot victims do not walk into the emergency room, there are many instances when they do. A gunshot wound to the leg that misses major vessels can be no worse than a bad laceration. The bullet passes in, and it exits or becomes lodged in deep tissue or bone. It has done its damage in a relatively confined space. Treatment, while "urgent," is not necessarily emergent, as the wound at that juncture is not "life threatening."
Had the woman been transported by EMS via the 911 emergency network, she may have been diverted immediately, as gunshot wounds and particularly head injuries are generally taken directly to the highest point of care. Frequently, the only reason such an injury would be brought to a secondary receiving facility is for "life flight" transfer. Because of this common practice, the ED staff may have been less familiar with the serious emergent nature of the woman's injuries, particularly her traumatic brain injury.
The fact that there were no neurosurgeons readily available to the staff, and that the advanced radiology capabilities were limited to on-call personnel, suggests that this hospital should have immediately arranged transfer of this patient utilizing a "transfer agreement." Such an agreement should have been in place, thereby allowing immediate transfer of such potentially serious cases to the closest available hospital with a fully equipped hospital with a fully qualified trauma team.
Transfer agreements bypass the need for the first facility to seek out a receiving facility, as the agreement establishes the level of care that is always available. Transfer agreements are generally put in place between communities and larger trauma-oriented facilities to handle catastrophic cases and those traumatic accidents that require a highly specialized and frequently costly response that is well beyond the scope of a small community hospital. The transfer agreement is effectively a means to bypass the community network and its lack of capability in order to expediently get a patient to where he or she needs to be as quickly as possible.
All head injuries are considered emergent. Swelling and hemorrhage into the brain are life-threatening, based on the mere fact that the integrity of the brain is essential for all bodily functions. Initially, the woman may have been cognitively appropriate, but as the damaged brain tissue responded to the trauma with ensuing edema and the probability of intracranial bleeding, there would have been obvious neurological changes. From the narrative, there were indications upon exam that she did indeed have a closed head injury. The fact that there were signs of traumatic response at the point of entry wound would draw the conclusion that the projectile has caused significant damage as it exploded within her brain.
The X-ray was positive for a foreign body, which was the bullet casing. This in itself should have initiated an immediate transfer to a hospital that was equipped to handle immediate brain surgery, as that was the likely outcome for this patient. Had a neurosurgeon been readily available, the resultant edema and clots that had formed as a result of the injury, together with the resultant increased intracranial pressure, could have been relieved with better chances for a less adverse outcome.
There are federal laws that regulate the provision of emergency services. Likewise, accreditation bodies, such as The Joint Commission, the Centers for Medicare & Medicaid (CMS), and state licensing boards address these necessary but significantly high-risk services. It is mandatory that smaller and/or community hospitals outside the traditional higher tertiary teaching hospital affiliated with medical schools and big city medical centers have a "transfer agreement" in place to assure that the appropriate level of care is readily available and serious delays in continuity of services are avoided. Calhoun suggests that facilities review their policies regarding transfers and how transfers are documented. If necessary, Calhoun adds, facilities could consider initiating protocols or standing orders for certain identified diagnoses in the ED.
From the narrative, it appears that the triage nurse saw this patient as "standard issue," a walk-in who was not displaying any obvious signs of distress and who did not pose a significant risk for "waiting." Urgent care is precisely what small-town hospitals provide to medical cases and minor trauma. They are not staffed nor equipped to handle the life-threatening injuries that are the substance of an academic trauma unit.
Calhoun also believes that "this case demonstrates the importance of supporting documentation." For example, there are several instances where care was delayed and the record does not provide a good explanation. Why didn't the hospital call the transfer center until 10:15? From the summary, it appears that the ED physician held this patient because he wanted to get a CT exam, but the real answer might be that the hospital was unable to find another facility to accept the patient before that time. However, if the efforts to arrange the transfer are not documented, most juries would be skeptical of that argument. A record of the efforts to arrange the transfer could be very helpful to demonstrate that the hospital was doing everything that it could. On the other hand, a record that demonstrates ineffective efforts would be equally damaging.
Had this hospital properly trained its ED staff in trauma assessment and triage, this patient would have been routed directly to the receiving hospital with alldue haste, and all the care she received would have been timely and emergently delivered.
1. Superior Court, Los Angeles County, California, Case No. NC053021.