Legal Review & Commentary: Failure of a timely diagnosis leads to cerebral palsy, mental retardation, and a $55.6 million verdict
Failure of a timely diagnosis leads to cerebral palsy, mental retardation, and a $55.6 million verdict
By Jan Gorrie, Esq., and Blake Delaney, summer associate
Buchanan, Ingersoll Professional Corp., Tampa, FL
News: A minor complaining of fever and wheezing was admitted to a hospital. After going to two other hospitals for the same symptoms and being discharged each time over a three-day period, the plaintiff arrested while en route to further care. A jury awarded the plaintiff $55.6 million, which was reduced to present cash value of $20 million.
Background: The child was admitted to the hospital March 27 complaining of fever and wheezing. A chest X-ray showed signs of nutritional rickets, but the child was not diagnosed with the condition. The next day, the child was transferred to another hospital for insurance purposes. During hospitalization, the patient showed signs of intercostal and subcostal retractions due to her underlying respiratory syncytial virus. Despite these indications of respiratory distress, no further tests or X-rays were performed. Less than 24 hours later, she was discharged without having been accurately diagnosed.
On March 31, the child was taken to a third hospital. Her mother told emergency department (ED) personnel that her child had been previously hospitalized and now was "gasping for air." But, after taking a cursory history and advising a visit to the child’s pediatrician, the ED physician sent the child home.
The following day, en route to the hospital, the child arrested, causing a deprivation of oxygen. The onset of the arrest was attributed to upper airway obstruction due to a laryngospasm secondary to nutritional rickets. As a result of the oxygen deprivation, she now suffers from cerebral palsy and mental retardation and requires 24-hour care.
The plaintiff brought suit against the three hospitals and associated physicians. The plaintiff claimed the first hospital missed a clear finding of nutritional rickets in the X-ray. During the trial, the judge withheld from the jury evidence indicating that the ED physician at the first hospital had failed his board examinations six times and that he been demoted from the Air Force for eight separate acts of incompetence.
Nevertheless, the jury awarded the plaintiff a total of $55.6 million, which was reduced to present cash value of $20 million.
What this means to you: This case demonstrates the importance of establishing and adhering to standards of practice in all aspects of an ED. The three hospitals in this case showed deficiency in their ability to, among other things, conduct medical procedures, administer medical personnel, and diagnose, treat, and discharge patients.
The first hospital acted negligently in carrying out the initial chest X-ray. "While chest X-rays are often thought of as routine, they are a basic and important diagnostic tool," says Ellen L. Barton, JD, CPCU, risk management consultant based in Phoenix, MD. It is important to have radiology over-read all X-rays within a reasonable period of time, such as 24 hours after the initial film is taken. "The hospital in this case apparently did not have an over-read program to provide an accurate diagnosis and treatment," adds Barton.
The hospital also fell below the standard of care regarding its administration of ED personnel. "Even though the jury did not base its verdict on the issues of competency involving the physician, it is obvious that the credentialing process at the hospital was horrifically deficient. Failing specialty boards six times and demotion from the Air Force for eight separate acts of incompetence would surely demand, at the very least, an intense proctoring program," states Barton.
The second and third hospitals also acted unreasonably in treating the child. The second hospital was negligent in diagnosing, treating, and discharging the patient after she showed signs of respiratory distress. "The hospital should have documented the symptoms and immediately followed up with additional tests or X-rays," says Barton. The third hospital then compounded the problem by not responding to the mother’s concerns. "Having been told that the child had been previously hospitalized, a red flag should have risen immediately in the minds of all the emergency department nurses and physicians who interviewed and examined the patient."
This case is further instructive in demonstrating the potential problems that can arise when patients are transferred from hospital to hospital. Although visiting the second hospital provided an opportunity to review the chest X-ray, diagnose the problem accurately, and treat the patient appropriately, the transfer could have also created communication problems. "For example, if an over-read program at Hospital 1 had caught the problem, there might not be systems in place to forward corrected information. Thus, whenever there is such a transfer, the transferring hospital has to have systems in place to assure that all appropriate medical information is transferred with the patient or is sent in a timely manner to the receiving hospital," says Barton.
Although it does not appear that such a problem occurred in this case, hospitals should have a standard operating procedure for effectively handling any transfers. "It is critical that in today’s busy emergency departments that systems be put in place to evaluate patients on both qualitative and quantitative bases," Barton says.
First, patients who present with symptoms need to be diagnosed and treated quickly and accurately. Second, hospitals must establish standards for scheduling a patient’s return visit, such as within 24, 48, or 72 hours, as the case may be. Barton adds, "Such systems will provide physicians and nurses with necessary information so that additional scrutiny can be provided that will yield accurate diagnoses and appropriate treatment."
Reference
Zakyra Hall, by her Next Friend Keisha Wade v. Henry Ford Health System, et. al., Wayne County (MI) Circuit Court, Case No. 00-17269-NH.
A minor complaining of fever and wheezing was admitted to a hospital. After going to two other hospitals for the same symptoms and being discharged each time over a three-day period, the plaintiff arrested while en route to further care. A jury awarded the plaintiff $55.6 million, which was reduced to present cash value of $20 million.
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