Legal Review & Commentary

Negligent treatment of epileptic seizures results in death: $1.5 million settlement in New York

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

News: A man presented to a hospital after experiencing two epileptic seizures and a constant twitching in his leg. Hospital staff diagnosed him with epilepsia partialis continua and hospitalized him. During the next week and a half, the patient was administered various antiepileptic drugs, but none seemed to work. On his eleventh day of hospitalization, the man suffered a series of general seizures, resulting in cardiopulmonary arrest and death.

The patient’s estate sued the hospital for negligence, claiming that the defendant’s failure to train and monitor its staff and residents led directly to the patient’s death. The hospital settled with the plaintiff for $1.5 million before trial.

Background: A 35-year-old landscaper, having recently suffered two epileptic seizures and exhibiting constant twitching of his right leg, presented to his local hospital’s emergency department. Hospital staff observed the man and diagnosed him with epilepsia partialis continua, a disorder involving spontaneous regular or irregular clonic muscular twitching repeated at fairly short intervals (often no more than 10 seconds at a time) in one part of the body for a period of days or weeks. A patient suffering from epilepsia partialis continua often suffers the localized muscular spasms and generalized convulsion throughout sleep, although possibly at a reduced rate.

The patient was hospitalized so that medical personnel could monitor his condition. Hospital staff administered several different antiepileptic drugs, but none of them controlled his seizures successfully. Consequently, the patient was held in four-point restraints and a restraint vest to protect him during his continual seizures. The man also experienced a brief period of suffocation, which caused staff to insert an endotracheal tube to increase ventilation. The patient was in a constant state of agitation during his time at the hospital. On the man’s eleventh day in the hospital, he suddenly suffered a series of general seizures, which culminated in a loss of consciousness and cardiopulmonary arrest. The man died shortly thereafter.

The administratrix of the man’s estate filed suit against the hospital, claiming its negligence led to the patient’s death. The plaintiff first claimed the hospital staff misdiagnosed the patient as suffering from epilepsia partialis continua, rather than from status epilepticus. If staff had correctly identified the man’s disorder, the plaintiff alleged, they would have known to administer high doses of a single anti-seizure drug until the seizures were controlled, which would have taken only a few days. The plaintiff further alleged that the hospital was negligent in failing to properly train its residents in the diagnosis and treatment of epilepsy and in failing to properly supervise its residents. The plaintiff based this claim on the premise that a hospital should be held vicariously liable for the negligence of its residents because residents are often considered both employees of the hospital and students.

In response, the hospital did not dispute that it may have breached the relevant standard of care, but rather focused on the causation problems in the plaintiff’s claim. The defendant first argued that when the patient presented to the hospital, his brain was infected due to the constant exposure to insecticides the man had experienced from working in the landscaping business. As a result, the patient’s seizures were caused by a brain infection, not by epilepsy. The hospital further maintained that the infection was resistant to traditional drug therapy and would have killed the man eventually. In any event, the hospital claimed, its conduct was not the legal cause of the plaintiff’s damages.

The case never proceeded to trial, however. Perhaps fearing a sympathetic plaintiff who was claiming future loss of parental guidance for the decedent’s surviving 7-year-old daughter, the hospital settled with the plaintiff for $1.5 million just days before jury selection.

What this means to you: This case involves several issues related to standard of care and possibly to causation, which are subject to review by the facility’s risk manager. The major issues/ points for consideration relate to the fact that residents are typically considered employees of the hospital and as such are the hospital’s responsibility; restraints may have been improperly used; and there seem to have been deficiencies in the providers’ awareness of the care, treatment, and types of epilepsy.

"Hospitals are definitely held responsible and liable for the acts of omission or commission committed by its residents. The theory of vicarious liability imposes liability on hospitals for acts of negligence of its residents," says Stephen Trosty, JD, MHA, CPHRM, director of CME and risk management for American Physicians in East Lansing, MI.

Residents not only are considered employees of the hospital, but they also are under the direct supervision of attending faculty physicians.

"Hospitals are expected to have adequate supervision of residents and to ensure that residents know when to call for assistance from the attending physicians, which patients/conditions they can treat, and which patients/conditions they should not treat without the direct involvement of the supervising physician. Residents also have to know that if patients are not responding to treatment, then it becomes necessary to call in the supervising physician and, if necessary, to obtain a consult from an appropriate specialist. Residents should know their limitations and be expected to seek and receive assistance when necessary," adds Trosty.

"Before a resident ever touches a patient, they should be well versed in the hospital’s protocols or policies and procedures setting forth tasks that residents can perform with and without direct supervision. The protocols should indicate types of conditions and patients for which residents are expected/required to seek input and assistance from their supervising physician, as well as when to call in a specialty consult," he notes. "There should be little room for doubt as to when and how the resident should engage the attending.

"Specifically as to this patient’s condition, physicians, both attending and residents, should be trained to recognize the various types of epileptic seizures. They should know the appropriate form of treatment for each type, including medication, and should know when to consider other options to the initial diagnosis if no improvement occurs. It is important that physicians are able to recognize the signs and symptoms of the various types of epilepsy, and to know the appropriate treatment regimen for each," states Trosty.

"With regard to restraints, patients should only be placed in restraints, either physical or medical, if it is necessary for their own self-protection or the protection of others. There should be medical orders for the restraints and the orders should have the basis for use of the restraints. The orders should only exist for a limited period of time and should have to be reviewed and/or rewritten by a physician on a regular, frequent basis [not to exceed 24 hours]," he says.

"Further, patients who are placed in restraints should be closely monitored. The monitoring should be more frequent and continuous than that for other patients. In this case, the need for more frequent monitoring was acute, for the patient had suffered a brief period of suffocation, and had an endotracheal tube, which prevented the patient from even calling out if in need of assistance or in trouble," says Trosty.

Combining the use of restraints with the patient’s inability to communicate (due to the endotracheal tube), and then adding the possibility for seizures, produced a formula for potential disaster.

"Knowing that this epileptic patient could have seizures and loss of oxygen during sleep, the hospital had an obligation to provide adequate, frequent monitoring. This is especially true after he was placed into restraints," emphasizes Trosty.

"In addition, the caregivers should have considered that epilepsy can sometimes be exasperated by stress and agitation, and so serious thought should have been given as to the appropriateness of the use of restraints. By increasing the patient’s agitation through use of the restraints, the physicians/hospital might have inadvertently been making the epilepsy condition worse and increasing the frequency of seizures. There is no indication that this was ever considered by the physicians and hospital personnel," he notes.

Accordingly to the Epilepsy Foundation, approximately 2.5 million Americans have epilepsy, and 60% of those persons are 15-64 years of age. Seizures disorders strike all demographic groups, and although the socioeconomic or ethic background of the decedent is unknown, the prevalence of epilepsy is higher among minority populations living in poverty than the general population. Research has not been able to determine if this discrepancy is due to racial variations or socioeconomic factors. Death rates also are elevated in people with epilepsy especially when seizures are not controlled. About 25% of those with epilepsy are considered "intractable," which means that seizures persist despite treatment. Epilepsy affects individuals to varying degrees, which are generally placed into three categories of severity based on the spectrum of disability it creates — uncomplicated, compromised, and devastated. Those with very limited, minor seizures, whose condition is more easily controlled with minimal amounts of medication are considered "uncomplicated." Those persons who suffer compromised social, emotional, and educational/employment problems due to the side effects from larger doses of medication are deemed "compromised." The "devastated" group are most likely to have epilepsy as a result of brain disease or injury that also impairs learning, memory, attention, and motor and emotional function; devastatingly impacting all aspects of life. However, in all instances, the risk of seizure-related deaths is increased among patients with poor or little seizure control, and sudden unexplained death occurs across all three groups.

Trosty says, "The physicians should have been considering other possible forms of epilepsy that the patient could be suffering from when there was no positive response to the medication. Even though the type of epilepsy they diagnosed can require use of medication for a prolonged period of time before seeing improvement, the lack of progress should have at least resulted in a review of the initial diagnosis. No evidence exists that this occurred. There is also no evidence that a consult was requested with a physician whose specialty was epilepsy. Both of these should have occurred. Many residents have little experience, and minimum familiarity, with epilepsy."

As to how the incident was handled by the hospital, "the hospital appears to have made a serious error in judgment when it tried to claim, as a defense, that the seizures may not have been caused by epilepsy but by an infection due to exposure to insecticides. There is nothing noted in the medical record to indicate that this was given consideration by the physicians, residents or other medical professionals. All of the treatment was based on a diagnosis of epilepsy, and the medication given was what is given for epilepsy. There is no mention of any testing being done to determine if the brain had been infected, no mention of any effort made to determine how long the man had been exposed to insecticides, what insecticides he had been exposed to, or what the results of such exposure would be. To suddenly raise this causation issue after his death, with no known documentation that this was ever considered or assessed, appears to be a desperate action likely to anger any jury," adds Trosty.

The medical record should support the proposition being made in defense of claim. He adds "that if such an alternative diagnosis was actually considered while the deceased was in the hospital, there should have been documentation of efforts that were made to determine if there was a brain infection, and if a brain infection can be caused by exposure to insecticides similar to those with which the deceased had regular contact. There should have been an indication of some form of attempted treatment for this condition, some medication that was given, some tests that were ordered. There is no indication that any of this occurred. Therefore, if this was actually considered, the hospital and physicians are clearly guilty of malpractice by doing nothing either to confirm, rule-out, or treat this suspected condition. Some acts of commission would have had to occur relative to this hypothesis to negate negligence. Failure to have taken any action, if this was suspected, could be said to amount to medical negligence.

"For the hospital to argue as part of causation that the alleged brain infection was resistant to traditional drug therapy and would have killed the man, they have to show tests that were done to confirm this diagnosis, efforts that were made to identify appropriate drugs for this alleged type of infection, use of these drugs, and continuous monitoring of the patient. None of this is indicated in the facts that are provided. In fact, based upon the fact pattern, it appears that only epilepsy was considered and treated, in which case, the hospital appropriately considered cutting its losses and settled," concludes Trosty.


• Kings County (NY) Supreme Court, Index No. 42410/00.