Legal Review & Commentary: Two trials determine negligence in baby case

News: The mother of a premature infant who was placed in a hospital’s neonatal intensive care unit (NICU) brought suit against the hospital and specifically against the NICU. The first trial resulted in a $2.4-million verdict against the NICU. This decision ultimately was overturned because instructions to the jury failed to specify which of the hospital’s agents or employees were involved in the negligence alleged by the plaintiff and failed to differentiate between the varying standards of care applicable to those agents and employees. These technical deficiencies will likely be addressed on remand.

Background: The infant was born prematurely and was placed in the hospital’s NICU. An umbilical arterial catheter (UAC) was inserted into his abdomen to monitor blood gases. When he was 2 days old, a nurse drew blood from the UAC and repositioned the child. Shortly thereafter, the boy was found bleeding from his umbilical artery because the UAC had become dislodged. The child lost approximately half his blood supply in the incident; however, no cardiac or respiratory alarm sounded.

According to the nurse, once she realized what had occurred, she immediately applied pressure to stop the bleeding, summoned a neonatologist, and paged a medical resident. The neonatologist ordered a push of 20 cc Plasmanate. The medical resident ordered another 10 cc Plasmanate and 20 cc packed red blood cells. The neonatologist did not recall the incident at trial.

The infant was transferred to another facility the following day. A cranial ultrasound showed the boy had suffered intracranial bleeding. He was later diagnosed with cerebral palsy and mild mental retardation.

The mother sued the hospital, alleging medical malpractice. The trial judge ruled a national standard of care applied to nurses and allowed for jury instructions that substituted the "hospital neonatal intensive care unit" for the specific professionals and specialists at issue.

On appeal, the court ruled that this instruction was improper because it failed to specify which of the hospital’s nurses, physicians, and medical residents were involved in the care of the boy. Further, the instruction failed to differentiate between the varying standards of care applicable to those agents. The appellate court noted that the hospital could be held vicariously liable only for the negligence of its employees and agents, and that the NICU was neither. Further, there was no evidence presented by the plaintiff that the NICU acted independently or had any independent responsibilities. However, because the hospital may be directly liable for malpractice through claims of negligence in supervision of staff physicians and selection and retention of medical staff, or may be vicariously liable for its agents’ negligence, if the arguments are repackaged, the hospital may ultimately be found liable in this instance.

The appellate court also rejected the court’s use of a "general" statutory standard of care for nurses, which was the standard applicable to general practitioners as opposed to the specialty nurses used in the NICU. The court concluded that neither the general nor specialist standard of care applied to nurses, who do not engage in the practice of medicine. The court instead ruled that the common-law standard of care applied in medical malpractice actions against nurses, that being the skill and care ordinarily possessed and exercised by practitioners of the same profession in the same or similar "units."

What this means to you: We can expect claims of vicarious liability directed at hospitals to be on the rise as the media coverage expands on the issues of the nursing shortage, the malpractice crisis, and the increase in errors occurring in health care institutions. This case identifies legal arguments that were appropriately rejected at the appellate level. However, as mentioned, creative repackaging of these arguments by plaintiff’s counsel could create genuine exposure to the hospital in many areas.

"Staffing and nurse-patient ratios, particularly in high-acuity areas, will become critical in a climate where research studies are being conducted to attempt to correlate patient errors to the nursing shortage," notes Melanie Osley, RN, MBA, CPHRM, risk manager at St. Francis Hospital & Medical Center in Hartford, CT. In this particular case, the nurse-patient ratio would have been an important factor in identifying how much time might have elapsed before the nurse returned to this patient and discovered the dislodged catheter and the bleeding. Staffing issues also can effect how often routine safety checks of equipment are performed and whether alarms are functioning properly. If an argument of inappropriate staffing relative to patient acuity and maintaining patient safety prevails in court, the hospital can have significant liability.

Hospital training, supervision, and utilization of nursing staff also will come under scrutiny as a potential liability hazard. Cross training and floating are both commonly used methods for solving nursing staffing problems in particular patient care areas. Within a hospital system, similar nursing units may be under the supervision of one nursing director functioning under a specific nursing specialty division. Nurses in these units may be cross-trained to float among the similar units within the division. For example, neonatal intensive care, labor and delivery, postpartum, and pediatric nurses may be trained to float among all of their respective areas, or to float just within one or two of the areas. It is important to be certain that cross-training is adequate, ongoing, and properly documented. As cited in this scenario, the standard of care for malpractice actions against nurses refers to the skill and care ordinarily possessed by a practitioner in the same or similar "units." "Utilization of nursing staff in areas other than their "home" unit at a frequency rate that blurs the lines of nursing specialty skills, or that makes it difficult to properly maintain the skills for which the person was cross-trained, is fodder for liability exposure," Osley says.

Hospitals also could be held liable for inappropriate use of clinical staff in areas where the skill mix of the staff and the patient census and acuity do not match accurately enough. While the appellate court was correct in its ruling that a "unit" is not a specific employee or agent, the individual staff members within a particular unit are the agents, servants, or employees of the hospital. The training, education, and skills required of the personnel who work in certain units can and should come under scrutiny from a risk management perspective. Documents indicating the skill mix of unit employees can be discoverable, along with documents showing what specific staffing ratios were on any given date.

The publicity surrounding medical errors in health care institutions will, no doubt, create an increase in the numbers of medical malpractice claims. The malpractice crisis already has forced some providers to leave their private practices or continue their practice woefully underinsured in comparison to the settlements and verdicts that are occurring. This combination will force plaintiffs to look to the "deep pockets" of the hospital as a source of compensation. They will seek a variety of creative ways to find liability on the part of the hospital and its staff, whether it is physicians, physician extenders, or nurses. Osley contends, "the risk manager should be aware of how validation of staff skill is maintained, and how the staffing processes are utilized and documented."


Cox v. Board of Hospital Managers for the City of Flint, No. 118110 (Michigan, July 25, 2002).