Reckless or negligent? Zion case gives distinction

By: Francis P. Bensel, JD

Barbara D. Goldberg, JD

Martin, Clearwater & Bell

New York, NY

Last year's verdict in Zion v. The New York Hospital1 was a vindication of the hospital and physicians who treated Libby Zion, the 18-year-old daughter of author Sidney Zion. Libby had been brought to the hospital on the night of March 4, 1984, suffering from fever and agitation. Toward morning her condition deteriorated rapidly and unexpectedly, resulting in cardiorespiratory arrest and death.

Sidney Zion went to unprecedented lengths in his attempts to punish the hospital and the physicians who, in his opinion, were responsible for his daughter's death. Professional disciplinary proceedings were commenced against the physicians, and a grand jury was empaneled to consider criminal charges.

Zion also lobbied for legislative changes limiting the consecutive hours that could be worked by interns and residents. He argued that extreme sleep deprivation had contributed to the treatment errors which, he claimed, had caused Libby's death.

Regulations subsequently enacted by the New York State Department of Health, based on recommendations by an advisory panel on emergency services known as the Bell Commission, after its chairman, Dr. Bertrand Bell, are popularly known as the Libby Zion Laws.

Ironically, the intern and residents who treated Libby Zion could have worked the same length of time under the new laws.

Punitive damages sought

In his civil malpractice action, Zion sought punitive damages, charging that the hospital's interns and residents were inadequately supervised, and that the supposed sleep deprivation stemming from their hours on-call had resulted in egregious acts of malpractice, such as the administration of a contraindicated drug and the virtual abandonment of a critically ill patient.

The physicians ultimately prevailed in the disciplinary proceedings, and the grand jury, although critical of the hospital's practices, found no basis for criminal charges. Likewise, the civil jury rejected the plaintiff's claims for punitive damages. Indeed, of numerous potential theories of liability, the jury found only a few departures from accepted practice.

Three of the treating physicians were found liable in connection with the administration of Demerol, which was allegedly contraindicated by the patient's history of taking Nardil, a monoamine oxidase inhibitor. In addition, the patient's intern was found negligent for failing to carry out a plan for "cool soaks/compresses" to treat the patient's fever, by not attending at the patient's bedside when called by a nurse at 4:30 a.m., and by not consulting with more experienced physicians when the patient's condition allegedly worsened at 4:15 a.m.

While the hospital was found negligent with respect to the workload assigned to the intern, this was found not to be a proximate cause of the patient's death. Thus, the hospital was exonerated of any liability other than in its vicarious capacity as an employer.

The jury awarded $750,000 for pain and suffering, which was reduced to $375,000 because of a 50% finding of contributory negligence, based on the patient's alleged ingestion of cocaine.

On the parties' post-trial motions, the court reduced damages to $375,000 and set aside the finding of culpable conduct, so the net recovery to the plaintiff was the same. Zion, which is significant because of the plaintiff's sweeping attempts to indict the hospital's institutional practices, as well as the treatment rendered to Libby Zion, stands in contrast to other recent, well-publicized cases involving punitive damage claims or the criminal prosecution of health care providers for the death of a patient.2

These cases have been widely discussed in the news media and by various commentators.3 A crucial factor characterizing the latter cases, which the jury found to be absent in Zion, was extreme misconduct, such as an unjustified refusal to treat a critically ill patient, that went beyond mere negligence in diagnosis and treatment.

The legal standard for an award of punitive damages requires a showing that the defendant was "grossly negligent," "reckless," or "deliberately indifferent" to the patient's welfare.

A similar standard applies to crimes such as reckless endangerment or criminally negligent homicide. The type of conduct which has led to punitive damage claims or criminal charges against physicians includes the unjustified refusal to transfer a critically ill patient to the hospital, attempts to falsify records or conceal malpractice, a focus on economic concerns rather than patients' welfare, and incompetence so pervasive that it borders on criminal conduct.

Fortunately, this type of conduct is rare in a medical setting. Despite the publicity prompted by recent criminal prosecutions of physicians, such cases are likely to remain the exception rather than the rule.

Nevertheless, it is essential for hospital risk managers, as well as physicians, to be aware of the applicable legal standards and the distinctions between "negligent" conduct and "willful" or "reckless" conduct. Negligence can lead to an award of compensatory damages for lost earnings and pain and suffering, while willful or reckless conduct can warrant a more serious penalty.

A hospital might face punitive damages or even criminal liability if a patient died as a result of grossly inadequate treatment, which in turn was linked to inadequate hospital protocols or an institutional pattern of failing to follow applicable protocols. Such liability might be based on inadequate credentialing or the failure to take action against physicians known to be incompetent.

Laboratory enters 'no contest' plea

In a recent Wisconsin case, a laboratory, Chem-Bio Corporation, entered a plea of "no contest" to charges of reckless homicide for misreading the Pap smears of two women who died of cervical cancer. The impetus for the prosecution in Chem-Bio was the extreme indifference to the individual patients' welfare, as demonstrated by the volume of slides read by a single technician, coupled with the absence of adequate quality controls. It is conceivable that a hospital might face punitive damages under similar circumstances.

Significantly, the Pap smears of both patients in Chem-Bio contained obvious indications of cervical cancer, but they went undiagnosed for several years. The technician who read the slides was paid on a "piecework" basis, which resulted in an annual rate of 47,000 Pap smears, more than four times the rate recommended by the American Society of Cytology.

On the issue of inadequate supervision, one of the allegations against the laboratory's medical director was that he did not rescreen a percentage of the tests with negative results, as required by federal law.

A hospital is unlikely to handle the same volume of pathology slides as the commercial laboratory in Chem-Bio. But the absence of adequate quality assurance measures -- or the failure to take action against a hospital pathologist who was shown to have a pattern of incorrect diagnoses -- could lead to claims for punitive damages against a hospital.

Claims for punitive damages, as well as liability under the federal Emergency Medical Treatment and Active Labor Act (EMTALA), may also be based on the unjustified refusal to treat a critically ill patient or a failure to stabilize a patient before transfer.

In Sultan v. Kings Highway Hospital Center, a patient in the throes of a cardiac arrest was turned away from a hospital emergency room without receiving any treatment or even being examined by a doctor, on the ground that the hospital was operating at full capacity.4 In Graham v. Columbia Presbyterian Medical Center, a surgeon refused to return to the hospital to examine a patient on whom he had operated earlier that day, despite repeated reports of post-operative hemorrhaging.5

In each instance, the patient died, and appellate courts upheld claims for punitive damages based on the refusal to provide treatment. The Graham court concluded that the defendant's deliberate refusal to return to the hospital "amounts to a failure to render assistance to a patient in need of emergency treatment, exactly the situation presented in [Sultan]."6

Evidence shows detailed treatment plan

By contrast, the Zion jury concluded that even if certain defendants were negligent in giving the patient Demerol, which was contraindicated by her medical history, they did not abandon her and were not indifferent to her well-being.

Evidence credited by the jury showed that a detailed treatment plan was developed and implemented by the house staff in consultation with the private attending physician, and although the patient's intern was criticized for not returning to the patient's floor to examine her when called by the nursing staff, the intern was aware of the patient's condition and gave telephone orders for further treatment, based on the symptoms described by the nurses. Thus, her conduct could not fairly be characterized as abandonment of the patient, as the plaintiff had claimed.

Because deliberately indifferent conduct by a hospital employee, as in Sultan, might lead to the imposition of punitive damages against a hospital, risk managers should do these two things:

* Review treatment protocols to ensure that all patients are evaluated in a timely manner.

* If a patient cannot be admitted, make certain that the patient's condition is stabilized before transfer.

In the case of a post-surgical patient, as in Graham, requirements for on-premises coverage by an attending physician, in the absence of the patient's treating physician, might avoid claims based on the treating physician's failure to return to the hospital.

While the actual numbers of punitive damage awards and criminal prosecutions remain low, the incidence of punitive damage claims and demands for criminal investigations are likely to increase, along with the mounting pressure for healthcare reform and concern over the inadequacy of state licensing systems to deal with incompetent physicians, as in the Benjamin case.

From a risk management perspective, a reasoned basis for all treatment decisions, accurate documentation, and a prompt response once an adverse outcome is suspected should provide a "pre-emptive defense" to such claims. Likewise, increased vigilance in credentialling and quality assurance proceedings are essential to limit claims that a hospital failed to discipline or curtail the privileges of an incompetent physician.

(Editor's note: The authors represented New York Hospital in the Zion case)


1. Zion v. The New York Hospital, New York County Index No. 15353/85 (1995).

2. See, e.g. People v. Einaguler, 208 A.D.2d 946 (2d Dept. 1994); People v. Benjamin, New York Times, Sept. 13, 1995, B:3:1.

3. See, e.g. Maier, T., More Doctors Face Prosecution, Crimes Charged in Cases of Deadly Error, NY Newsday, April 18, 1995; A35; Anns, G., Medicine Death And the Criminal Law, N Engl J Med 1995; 333:8: 527; Abramovsky, A., Depraved Indifference and the Incompetent Doctor, NYLJ 1995.

4. Sultan v. Kings Highway Hospital Center, 167 A.D. 2d 534 (2d Dept. 1990).

5. Graham v. Columbia Presbyterian Medical Center, 185 A.D. 2d 753 (1st Dept. 1992)

6. Id. at 756. *