Legal Review & Commentary: Premature discharge of baby leads to $1.77 million Texas verdict

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

News: A newborn boy exhibited extremely low blood-sugar levels and was diagnosed with intrauterine growth retardation (IUGR). Neither a CT scan nor an MRI were ordered, and the baby was discharged within 24 hours of his birth. Three days later, the parents realized something was wrong with their child and returned to the emergency department (ED) at the hospital. The family waited for two hours before an ED physician saw their baby. A CT scan and MRI showed that the baby had intracranial bleeding and brain damage.

After filing suit alleging negligence against the treating physicians and hospital, the plaintiffs settled with the ED doctor for a confidential amount. A jury then returned a $1.77 million verdict against the hospital and the baby’s pediatrician.

Background: On June 26, 1997, a baby boy was born showing signs of low blood sugar levels. The child was immediately diagnosed with IUGR, a condition that hinders a child’s ability to store energy reserves such as fat and sugar, making it very difficult for the body to self-regulate blood sugar levels. Despite this, the pediatrician discharged the mother and her newborn from the hospital within 24 hours of the birth. Three days later, on June 29, the parents realized something was wrong with their baby and returned to the hospital. The ED physician let the baby sit for two hours before ordering a CT scan and MRI. These tests showed that the boy had catastrophically low glucose levels, brain damage, and intracranial bleeding. Further, the two-hour delay in treatment during the return visit had worsened the brain damage.

The parents, on behalf of their son, sued the pediatrician, the ED physician, and the hospital for negligence, alleging they should not have been discharged so quickly after birth and that additional tests should have been performed prior to discharge. The hospital’s tests suggested the boy had low glucose levels; this was confirmed by the fact that the child exhibited symptoms consistent with this condition. The plaintiffs also argued that the boy was known to be at risk for low glucose as a result of being diagnosed at birth with IUGR. Damages were sought for future medical care, loss of earning capacity, mental anguish, and pain and suffering. The parents also sought damages for mental anguish and past medical expenses.

The ED physician who delayed treatment of the baby boy for two hours immediately settled out of court for a confidential amount. In 2002, the plaintiffs’ case against the hospital and the pediatrician went to trial. The parties sharply disagreed as to whether the defendants acted reasonably, whether the defendants’ actions caused the baby’s brain damage and intracranial bleeding, and the amount and degree of the boy’s damages.

To prove that the hospital acted unreasonably, the plaintiffs contended that the hospital’s official policy regarding the treatment and monitoring of newborns with low glucose levels was unreasonable. The hospital should have, at a minimum, ordered a CT scan or an MRI to further assess the baby’s condition, even if the pediatrician failed to do so. As evidence of this assertion, the plaintiffs brought to light the fact that the hospital had, by its own initiative and one month prior to the incident in this case, decided to improve its policy. Despite the hospital’s prudence in creating the more stringent policy, it had neglected to actually implement it until June 30, 1997, the day after the baby was brought back to the ED. After putting forth evidence of the hospital’s negligence, the plaintiffs then claimed that the nursing staff acted unreasonably by not following the policies that the hospital did have in effect.

The defendants, however, rebuked the contention that it acted unreasonably and that the hospital’s existing policies were unreasonable. A significant amount of medical literature suggests that the presence of intracranial bleeding is normal from birth trauma. Consequently, the hospital still would have not found the baby’s condition alarming, even had it performed a CT scan and/or MRI on the day of the birth.

The defendants also disagreed with the claim that the defendants’ negligence caused the baby’s brain damage and intracranial bleeding. The defense experts argued that it was unclear exactly how the baby’s injuries came about, but that something must have happened to the child in between the time the baby was discharged and the time when he was brought back to the ED. The boy’s injuries could have been the result of some undetermined trauma such as a spontaneous stroke not related to the low glucose levels or an episode of shaken baby syndrome, even though there was no evidence of any retinal hemorrhages, which is typical with shaken baby syndrome.

The parties also disputed the severity of the boy’s injuries. The plaintiff pointed out that the child, even now at 5 years of age, could not talk and still was in diapers; they suggested he would have to live in a supervised setting at some point. The defendants, however, disagreed. Defense experts argued that the child might be able to dress himself and go to the bathroom unaided within five or six more years.

In November 2002, the trial concluded. The jury found the hospital and the pediatrician negligent and awarded $1.77 million in total damages. The jury award included $1 million for future medical care, $600,000 for loss of earning capacity, $100,000 for the past and future mental anguish suffered by the parents, and $70,000 in past medical expenses. The jury placed no individual liability on the nurses.

What this means to you: Newborn cases, like obstetrical cases, are difficult to defend because there almost invariably is a sympathetic defendant on the other side. The defense of such a case is even more pragmatic when there is seemingly clear evidence of negligence.

"The discharge of newborn with extremely low blood sugar levels and a known diagnosis of intrauterine growth retardation within 24 hours of birth represents questionable practice of medicine by both hospital and pediatrician. Many jurisdictions have enacted laws requiring health care insurance companies to pay for stays of at least 48 hours following delivery, and that is in the absence of any known complications or abnormal diagnoses with the mother or child. Regardless of who was paying for the delivery of this particular child, the discharge of the newborn with both of these medical conditions within 24 hours of birth is likely to be found outside existing standard of care," observes R. Stephen Trosty, JD, MHA, CPHRM, director of CME and senior risk management consultant for American Physicians in East Lansing, MI.

As some state legislatures have recognized, drive-by deliveries are increasingly being discouraged and in some instances prohibited.

"Twenty-four hours is simply not enough time for the mother to recover, let alone to perform adequate and/or comprehensive enough diagnosis and observation of infants. This is particularly true for infants who are exhibiting extremely low blood sugar levels and have been diagnosed with IUGR. Hospital policies and procedures should specifically address the issue of discharge of an infant such as the one presented in this case," notes Trosty.

Not enough can be said for developing adequate policies and procedures. In this case, the hospital seems to have recognized that need, but in the interim failed to abide by existing and soon-to-be implemented policies. Too, the timing of the implementation the facility’s new policy on point is rather ironic, if not circumspect.

"Policies and procedures should deal directly with the time within which discharge would be appropriate and those policies and procedures should be specific to the infant’s condition (e.g., for normal birth with no complications, for an infant who has extremely low blood sugar, for an infant diagnosed with intrauterine retardation, for an infant with multiple presenting medical problems or conditions). Policies and procedures should address which tests should be performed when certain conditions are present, and how the results of those tests should be received. At a minimum, critical test results should be evaluated and dealt with prior to discharge," adds Trosty.

Policies and procedures that are developed and not utilized become double-edged swords, for it is not enough to have the policies and procedures in place, if there are no assurances that they will be adhered to.

"Hospitals should have policies and procedures requiring testing in certain circumstances and certainly in instances where newborn infants exhibit serious medical conditions. Tests would be performed to determine, what, if any, additional complications exist, and/or determine if any immediate care or treatment is required prior to discharge. These tests are critical to determining the course of treatment and care of the newborn. Hospitals should be sure all staff are knowledgeable about existing policies and procedures and/or know where to easily access them," says Trosty.

With regard to the care provided by the pediatrician, "he should have conducted tests on the infant and obtained results prior to discharge. Both the pediatrician and hospital staff should have adequately and appropriately communicated with the parents regarding the infant’s condition; what they should expect; whether any follow-up should occur, what it would be, and when it should occur. In addition, the caregivers should have advised the parents on what they should look for in terms of signs and symptoms, which would indicate the need for follow-up care or treatment. Given the two complications, the pediatrician should have run a CT scan and/or MRI on day of birth to identify any problems or medical condition either resulting from, and/or causing, the intrauterine growth retardation. Further, the pediatrician should have recognized the possibility of intracranial bleeding and/or brain damage with a diagnosis of intrauterine growth retardation in the newborn and conducted appropriate tests prior to discharge from hospital to determine if the complications existed. Finally, the pediatrician should have run tests prior to discharge to determine if he could identify the reason for extremely low blood sugar in the newborn, if any related complications existed, and/or if any immediate treatment was required," notes Trosty.

Once the testing and follow-up errors were made and the child was discharged, the hospital and pediatrician had greater difficulty in arguing that their negligence did not cause the baby’s brain damage and intracranial bleeding since they performed no tests prior to discharge of the infant in an effort to determine either the extent and/or cause of the medical problems or injury at birth. It stands that the infant was diagnosed with two serious medical conditions that should have alerted the hospital and the physician of the need to try to ascertain the extent and/or cause of injury prior to discharge — not three days later.

"Even if the IUGR diagnosis occurred later, no testing was done prior to discharge and no effort made during the 24 hour stay to see if there were any contributing factors to the infant’s low blood-sugar levels. Nothing was seemingly done to explain the reason for this problem or alert the parents to the possibilities. Running tests closer to the time of birth and the time in which the abnormality was detected would likely have resulted in less brain damage to the child because appropriate interventions could have been initiated," adds Trosty.

Once the child returned to the hospital, the ED "should have had an appropriate and adequate triage system to identify the order in which patients presenting to the ED should be seen. The emergency department triage system should have identified the infant as needing immediate attention and not allowed for an additional delay in a time-sensitive situation. The delay in the ED’s seeing the infant and performing the CT scan and MRI likely worsened the brain damage, thereby making it more difficult for the hospital and physician to successfully argue that the injury, or the extent of the injury, was not due to the negligence of the hospital and/or physician," observes Trosty.

When going forward with the defense of a case, particularly in instances where the plaintiff is sympathetic, the defense must pay attention to every detail, including the selection of experts.

"Defense presentation of expert testimony to the jury disputing the severity of the boy’s injuries by arguing that the child might be able to dress himself and go to the bathroom unaided within five or six more years ([the] child already is 5 years old) did little to negate severity of injuries and likely angered the jury against the hospital and physicians. While it is not always possible to predict what your expert is going to say or do on the stand, once the unexpected happens you should be prepared to immediately address the situation," says Trosty.

Trosty added that "it is very important to review the testimony your expert witness will present prior to the actual trial and to determine the most effective way to present all expert testimony. It is too late to do this after the trial has begun. Defense counsel not only should know what their expert witnesses will say before they put them on the stand but also should know the most effective way to present evidence in order to gain the support of the jury."

In this instance, other avenues may have been used to present evidence regarding the severity of injuries and future needs of the child.


  • Harrison County (TX) Circuit Court, Case No. 99-0700.