Physician Legal Review & Commentary: Family of boy, 12, who suffered fatal brain damage awarded $3.5 million after 2-hour transfer delay

By Jonathan D. Rubin, Esq. Partner Kaufman Borgeest & Ryan New York, NY

Justin V. Buscher, Esq. Associate Kaufman Borgeest & Ryan Garden City, NY

Carol Gulinello, RN, MS, CPHRM Vice President, Risk Management Lutheran Medical Center Brooklyn, NY

News: In 2002, a 12-year-old boy was taken to the emergency department by his mother after she found him screaming in pain and holding his head. The child was at the emergency department for more than one hour before the doctor examined him, at which time it was discovered the boy’s previously implanted brain shunt was malfunctioning. As the hospital was incapable of treating the boy, transfer protocols to another hospital were initiated. The child, however, was not transferred for more than two hours, and the physician failed to re-examine him during that time. While the child awaited his transfer, his condition worsened. He suffered fatal brain damage, and he died three days later. The patient’s mother sued the doctor and alleged that she failed to recognize the severity of her son’s condition and timely arrange for his transfer to an appropriate facility. The jury awarded the mother $3.5 million in damages.

Background: A 12-year-old boy presented to the emergency department with his mother after she found him screaming in pain, holding his head, and appearing lethargic. The child had a history of significant developmental delays and required a brain shunt to drain excess cerebrospinal fluid from his brain. The child arrived at the emergency department and was examined by a nurse at 7:05 a.m. He was found to have stable vital signs. The nurse contacted the doctor at 7:30 a.m., and the doctor ordered pain medicine for the child. However, the doctor did not actually examine the child until 8:15 a.m., more than one hour after the child’s arrival, and 45 minutes after the physician was advised of the child’s status.

Upon examination, it was determined that the child had a malfunctioning brain shunt. The doctor began transfer protocols, because the hospital did not have appropriate neurosurgical personnel to treat his condition. The doctor also contacted the emergency department doctor at the receiving facility and the child’s regular neurologist and neurosurgeon. The doctor then went on to treat other patients, as she apparently did not realize the severity of the child’s condition. Although the child’s condition continued to deteriorate, the doctor did not return to reassess him. The doctor claimed that she was not told by the emergency department nurse of the signs of severe deterioration. The child was not transferred to another facility until 10:20 a.m., more than three hours after his arrival at the hospital. When the child finally arrived at the receiving hospital, he suffered respiratory arrest. His brain was damaged beyond repair. He died three days later.

The child’s mother thereafter commenced a lawsuit against the doctor. She alleged that the doctor failed to timely recognize the severity of the child’s condition, which resulted in excessive delay in his treatment and ultimately his death. It was argued that the doctor should have realized the severity of the child’s condition and arranged for quicker transfer. If the child had been timely transferred to an appropriate facility, then excess cerebrospinal fluid would not have built up in his brain, and he would not have suffered fatal brain damage.

The defendant doctor contended that she provided appropriate medical care to the child and had complied with the applicable standard of care. Defendant further argued that the child was still in stable condition when he arrived at the receiving hospital and was still treatable at that time. However, plaintiff was able to contradict this argument through the testimony of the child’s grandmother, who testified that the child’s deterioration happened about five minutes after arrival at the receiving hospital. Defendant’s creditability was further damaged when she contradicted her prior deposition testimony at trial and blamed the discrepancies on plaintiff’s counsel’s “threatening” demeanor while questioning her at the deposition. Plaintiff was able to disprove this contention through the testimony of stenographer who took the deposition and an audio recording of the deposition.

The jury found that the defendant doctor deviated from the standard of care in failing to timely transfer the child and awarded his mother $3.5 million.

What this means to you: In hydrocephalus, there is a buildup of cerebrospinal fluid (CSF) around the brain and spinal cord. This buildup of fluid causes higher than normal pressure on the brain. A shunt, usually placed when hydrocephalus is diagnosed, helps to drain excess cerebral spinal fluid and relieve the pressure in the brain. If the shunt stops working or otherwise malfunctions, the fluid will begin to build up in the brain again. Too much pressure, pressure that is present too long, or pressure that accumulates too fast will damage the brain tissue, as was seen in this case.

According to the summary, this child arrived at the emergency department and was examined by a nurse at 7:05 a.m. He was found to have stable vital signs. A child of 12 years old, with a prior history of shunt placement and presenting with complaints of severe headache and lethargy should, at the minimum, have a full set of vital signs taken that would include a blood pressure, pulse, temperature, and respirations. In this case, we do not know from the facts if all of these vital signs were taken. Because infection, as well as obstruction, is a frequent complication of shunt placement, the vital signs would give the caregivers a better indication of a differential diagnosis. In cases of increased intracranial pressure, an increase in blood pressure (hypertension) as well as a decrease in heart rate (bradycardia), known as Cushing’s response, is commonly seen when there is pressure on the brainstem.

The nurse contacted the doctor at 7:30 a.m., 20 minutes after the first encounter, and the doctor ordered only pain medicine for the child without an initial exam. What is not mentioned in the summary is why the nurse delayed in informing the emergency department physician of the critical information regarding the patient’s presenting symptoms and history of shunt placement unless, of course, she did not recognize the gravity of the situation. This situation was clearly an emergent one and needed to be addressed immediately. In fact, the doctor did not examine the child for more than one hour after the child’s arrival and 45 minutes after she was advised of the child’s status, thus precious time was wasted. Had the physician had access to this important information, and assuming that she was aware that time is of the essence in these cases, the physician could have changed her overall assessment and treatment plan for this patient.

Although the hospital did not have the appropriate neurosurgical personnel to handle this case in house, most hospitals do have a CT scanner. If this critical diagnostic test, a CT scan of the head, had been ordered, it would have given the emergency department physician valuable information to better evaluate the severity of the patient’s condition. A shunt series, which is simply an X-ray that examines the full length of the shunt to reveal any blockages or disruptions, also would confirm a diagnosis.

Additionally, according to the summary, the emergency department physician did contact the patient’s neurologist and neurosurgeon; however, there is no mention of what information was relayed to them and, in turn, what advice was given to the emergency department staff. As the patient’s private physicians and experts in their field, did they not also have an obligation to visit and evaluate the patient and possibly expedite the transfer to the receiving hospital? Our summary is silent on this matter.

It does not appear, from the information presented in the summary, that once the patient was deemed appropriate and waiting for transfer, frequent vital signs and neurological checks were performed or that the emergent nature of this child’s illness was appreciated. We can assume that if adequate assessments had been performed in a timely and accurate fashion, the patient’s deterioration would have been more readily identified and, ideally, his critical situation handled immediately.

The lack of escalation and communication of critical information between the nurse and the physician, as well as a lack of critical patient monitoring, are the salient issues in this case. It appears that performance of diagnostic tests, which are considered the standard of care, to determine this diagnosis also were lacking.

As such, the overall credentials and level of assessment skills of both the nurse and emergency department physician should be evaluated to determine if they are up to par with their job function and responsibilities as emergency department practitioners. If not, appropriate measures of remediation should be taken to ensure patient safety.

If the root cause of this case was a knowledge deficit in the timely recognition and treatment of a life-threatening neurological condition, then an educational opportunity in the way of a grand rounds conference or other informational forum on this topic for the emergency department staff should be a required corrective action.


JAS MA Ref. No. 271396WL, 2012 WL 6799935 (Mass.Super. Oct. 22, 2012).