Legal Review & Commentary

A baby’s death and a $5 million settlement

By Jan J. Gorrie, Esq., and Blake J. Delaney, Summer Associate
Buchanan Ingersoll Professional Corp., Tampa, FL

News: A woman in labor told an attending nurse that she thought the hospital and the obstetrician were not attending to her in a timely manner. The labor and delivery nurse contacted her obstetrician, but he failed to appropriately respond. The nurse should have contacted her supervisors about the woman’s concerns and the physician’s failure to take action, but didn’t. The fetus suffered severe brain damage because of a delay in delivery and subsequently died 11 months later. After filing suit against the obstetrician, the hospital, and the hospital’s parent company, the parents settled with the hospital and the corporate owner for $5 million; the physician paid nothing because he did not carry medical malpractice insurance.

Background: A couple in their 30s became pregnant with their second child. The mother was under the care of the obstetrician who delivered their first child. The doctor had performed the first delivery by cesarean without any complications. As the mother prepared to enter labor with her second child, she began to worry that the hospital was not attending to her in a timely manner. She relayed her concerns to the attending nurse, who had little, if any, experience in obstetrics.

The nurse told the obstetrician about the mother’s fetal distress, but the doctor refused to take action. The nurse did not relay her concerns about the patient or the physician to her supervisors. The doctor failed to respond to the repeated calls for direct medical intervention until the fetus had already suffered severe brain damage. The infant was born blue and limp. He died due to residuals of the fetal brain damage at the age of 11 months.

The parents filed suit against the obstetrician, the hospital, and the hospital’s parent company, which had recently acquired the hospital. The plaintiffs alleged that the defendants’ actions fell below the standard of care and caused the death of their baby boy.

During discovery, the parents learned that the obstetrician should not have been allowed to deliver their baby. Three years prior, the doctor worked at a hospital owned by the same corporation that owned his present hospital. The former hospital had been concerned about the obstetrician for several reasons, including the doctor’s continual failure to document reasons for surgery and list medications taken by patients. The parent company initiated an investigation of the doctor’s work and had recommended his privileges be revoked. The obstetrician resigned from that hospital. The next year, the state licensing board restricted the doctor’s future practice. Although the board did not take formal disciplinary action, the doctor had to agree to not accept any new obstetrics patients and to improve his record-keeping and chart entries.

As part of its claim for negligence, the plaintiffs maintained that the company owning the hospital should have told the couple about the obstetrician’s prior problems. In its defense, the company held that when it investigated the obstetrician, it provided notice to a national databank that collects reports of adverse actions against doctors. The hospital’s internal peer reviews, on the other hand, such as the one following the investigation of the obstetrician, are not made public. The reviews are kept private to create a safe place for doctors to report medical errors and to identify institutional problems. If the parents wanted to know about their obstetrician’s record, the company contended, they should have asked the doctor.

In his defense to the claim of negligence during the delivery, the obstetrician pointed out that the delivery was the fourth of five deliveries that day and night. As a result, the doctor claimed, he was heavily dependent on the nursing staff to maintain adequate observation and clinical judgment regarding the mother’s progress in labor. The nurses did not notify him quickly enough, he said, and that caused the delay in delivering the baby.

The doctor further maintained that when he was finally notified by the nurses about the mother’s serious condition, he delivered the baby within seven minutes. In response to the parents’ assertion that he should not have been practicing at that hospital, the obstetrician said he was unaware that his privileges to practice at the hospital had lapsed. He believed that the prior investigation had been resolved in his favor.

Furthermore, the parent company had just recently acquired the hospital, and so the doctor did not realize the hospital now was controlled by the same corporation as the hospital where he had been investigated.

Before going to trial, the plaintiffs settled for $5 million with the hospital and the parent company. Those defendants acknowledged that they had violated the standard of care. Corporate negligence, they maintained, played a part in the infant’s injuries and death. The obstetrician, on the other hand, was relieved of any financial liability as a result of the settlement. He had no medical malpractice insurance coverage. He only had to acknowledge that his actions during the delivery "fell below the standard of care of a reasonably prudent obstetrician."

What this means to you: This case illustrates the dangers that lay in wait for hospitals that fail to perform adequate credential reviews on individual physicians. "It appears from the commentary that the physician’s credentials were not sufficiently investigated by the defendant hospital. If the hospital had followed nationally accepted guidelines of checking not only the national databanks but also the state licensure board and previous employment references, information would have been obtained that could have barred this physician from staff privileges," observes Lynn Rosenblatt, CRRN, LHRM, risk manager, HealthSouth Sea Pines Rehabilitation Hospital in Melbourne, FL.

The state board of medicine has primary oversight of a disciplined physician. In most states, physicians and hospitals must report any revocation of privileges and/or disciplinary actions taken against the physician to the board. "In this instance, the case record indicates that the board had been aware of some problems, as they had entered into an agreement with the physician to restrict his practice. Had the hospital verified the physician through the board, these restrictions would have come to light," adds Rosenblatt.

"Even more disturbing is that the defendant hospital appears to have not verified the physician’s professional history with the facilities where the physician had previously practiced. The fact that both hospitals had the same corporate governance does not excuse the defendant facility from obtaining references from any other facilities where the physician had practiced. In fact, it makes the negligence of not having done so more egregious," she adds.

The proceedings of medical staff committees generally have some measure of confidentiality regarding peer review. Likewise, the state medical boards’ investigatory actions usually remain confidential, until such time that formal disciplinary action is taken.

The formal actions of the boards are most always public. If the hospital’s peer review committee felt that after completing its investigation the situation warranted reporting the physician to a national databank and terminating his privileges, the action against the physician was serious enough that the second facility should have been duly warned — had they checked. The fact that the physician had resigned did not clear the record nor should have it cloaked the action from public view.

With the rising costs of medical malpractice insurance, practitioners are increasingly going bare. This can lead to hospitals becoming the deep pocket in instances of medical malpractice where both practitioner and facility can be named and found at some degree of fault.

"Another disturbing fact in this case is that the physician had no medical malpractice insurance. In most states, physicians are required to carry at least a minimum amount of coverage or provide some alternate arrangement to compensate victims of medical negligence. The hospital carried the full financial burden in this case because the physician practiced bare," adds Rosenblatt. "Health care, like any other business, has its share of unscrupulous professionals who arrogantly believe themselves above the rest. The credentialing process and all the various agencies/ boards that are involved are designed to protect the public from situations where they are vulnerable and lack control. This case clearly points to the corporate responsibility that hospitals have in assuring professional safety and personal liability are at the forefront of its medical staff policies. Without exception, the re-credentialing process should occur on a regular scheduled basis generally at the time of licensure renewal or more often as the situation dictates."

Obstetrics is considered a specialty service within the hospital where a higher standard of professional oversight is required. "The case facts indicate that the physician had delivered five infants in a 24-hour period — an incredible load for a single practitioner. Medical staff policies generally have provisions regulating the actual amount of time a physician may provide service within such areas as the operating room and labor and delivery during a continuous period. This is designed to prevent fatigue and diminished judgment that accompanies it. The supervisory nursing staff should have questioned the situation and alerted risk management and/or administration for assistance," notes Rosenblatt.

Documentation seems to have been an outstanding issue as well. "There is an indication that the nursing documentation may have fallen below the standard for obstetrical practice. Standard of care in this setting includes the nurse’s initials and time on the monitor strip with a corresponding entry in the medical record at regular intervals that are established by the patient’s progress. The documentation should include when and in what manner the obstetrician was notified and any deviation from expected norms the nurse may have observed," says Rosenblatt.

"In addition, the nurse should carefully document the physician’s response (or lack of) to the situation," she continues. "Any evidence of fetal or maternal distress and/or any indication of unusually rapid or prolong labor becomes an emergency situation to which the physician’s immediate response is necessary. If the attending obstetrician is not available, there should be an on-call or backup plan to assure continual medical oversight of the patient.

"In this case, the hospital and its parent corporation failed to assure that a reasonable duty of care was met. Because the hospital failed to identify a potentially dangerous physician by not following well-established practices related to staff credentials, the facility assumed costly responsibility for a physician who fell below the standard of care of a reasonable prudent obstetrician. The question now is whether the obstetrician is still practicing and where," Rosenblatt says.

Reference

• King County (WA) Superior Court, Case No. 00-2-29778-5.