Legal Review &: Hospital ordered to pay $7.4 million for severe brain injury after nurses’ mistakes

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

Brandon M. Berkowski, Esq. Associate Kaufman Borgeest & Ryan Valhalla, NY

Alvin Safran Director of Risk and Claims Management The New York Hospital Medical Center of Queens Flushing, NY

News: In March 2013, a jury awarded a multi-million dollar verdict to a young woman who suffered severe brain injuries after nurses failed to follow doctors’ orders and mistreated her for an asthma-related condition.

Background: On Nov. 8, 2011, approximately four months after the plaintiff graduated from college, she was taken to the emergency department complaining of shortness of breath. The plaintiff had a lifelong history of asthma that was controlled through medication. On Nov. 8, despite taking her medications, the plaintiff’s condition worsened.

Doctors in the emergency department initially treated the plaintiff for an exacerbation of her asthma. After she was stabilized, she was admitted to the hospital’s telemetry unit for further evaluation and treatment. There, the plaintiff was placed on supplemental oxygen, and doctors ordered that she undergo cardiac monitoring as well as continuous monitoring of her oxygen saturation level.

For 24 hours, the plaintiff remained stable and was treated every four hours. Following this treatment, however, nurses removed the plaintiff from supplemental oxygen. They then failed to monitor the oxygen saturation of her hemoglobin. After being removed from supplemental oxygen and breathing the room’s ambient air for approximately seven hours, the plaintiff experienced a “cardiorespiratory event” that led to cardiac arrest. Emergency measures were taken, but the plaintiff suffered a severe anoxic injury that left her in a vegetative state.

On Nov. 21, 2011, the plaintiff, through her mother acting as guardian ad litem, filed a lawsuit against the hospital that treated her. The complaint alleged that the hospital failed to properly monitor the plaintiff’s respiratory condition and that, had it done so, her cardiac arrest could have been avoided. Specifically, the plaintiff argued that although doctors had ordered continuous monitoring of the plaintiff’s oxygen saturation level, nurses attending to the plaintiff failed to follow the order. The hospital countered that the plaintiff’s cardiac arrest was the result of an unexpected allergic reaction to medication she was given that day. At trial, the plaintiff’s nurses sought to avoid responsibility for not following the doctor’s orders and attempted to justify their actions by appealing to independent authority and independent medical judgment.

After less than two days of deliberation, jurors rejected the hospital and nurses’ positions and found the hospital negligent in its care and treatment of the plaintiff. Following the incident, the plaintiff, who is 26 years old, requires lifelong around-the-clock care and has been resident in a neurocare facility that costs approximately $1,200 per day. Jurors initially awarded the plaintiff more than $3 million in pain and suffering and more than $15 million in economic damages for past and future medical expenses and loss of future earnings. The hospital was ordered to pay $7.4 million.

What this means to you: In this case it is important for us to focus on two risk management issues.

The first one is monitoring. In this case the litigation focused on telemetry monitoring, but it could have just as easily been other types of monitoring such as fetal monitoring as well. Monitoring difficulties can be the result of environmental issues or clinical issues. Monitoring systems by different manufacturers will likely have different recommended user instructions.

It is obviously important that all users understand exactly how the specific monitoring system works and what to do if it malfunctions. Failing to follow the manufacturer’s recommendations for users can result in refusal to honor a warranty or refusal to defend, indemnify, and hold a user harmless. It is important from a risk management perspective that all contracts with manufacturers be carefully scrutinized particularly with respect to insurance and indemnification agreements.

Healthcare facilities must determine if they want to have dedicated technicians whose sole job is to vigilantly observe the monitoring system, e.g. “telemetry-techs.” The setting of alarms becomes a crucial factor in a successful monitoring system. Many of us have heard the term “alarm fatigue.” This situation happens when so many alarms go off that after a while staff members do not hear them or do not respond to them. It is also important to remember that although most of these systems can print hard copies of “strips,” those strips are generally kept online for a limited time, typically 24-48 hours. Policies need to be in place prior to usage, as to the circumstances in which printouts of monitoring strips must be obtained. Consideration should be given to backup systems that can store strips for long periods of time so that the “strips” can be retained for as long as the medical record is retained.

One aspect of the defense strategy in this case brings up another risk management consideration I find particularly intriguing. I refer to the attempted defense on behalf of the nurse(s) by referring to their independent duty to exercise medical judgment. It is certainly important in a culture of safety that practitioners feel free to question clinical decisions of others even if they are not within the same level of the clinical hierarchy. That having been said, the independent duty concept is a doctrine that several well-known plaintiff attorneys in my home state, New York, try to use against nurses. I have never seen it used by defense counsel before. It is a controversial doctrine and must be executed very carefully. While it is true that all practitioners do have an independent duty to express their opinions when they disagree with orders, that independent duty to question must be restricted to within the scope of practice.

Any departmental or administrative policy with verbiage that places an independent duty to question decisions of physicians on the nurses should be clarified with the words “within their scope of practice.” It is not reasonable to think that an individual with a different scope of practice is able to intelligently question any decision that a physician makes. Sometimes a plaintiff’s attorney will try to make this argument so they can reach the hospital’s “deep pocket” by bringing a nurse into the litigation. In such instances, the defense counsel should require the plaintiff to specify exactly in which decision(s) the nurse failed to exercise independent judgment. If that decision falls outside the nurse’s scope of practice, the allegation of failure to exercise independent judgment should be vigorously opposed.

In order to exert their independent duty to question decisions, it is important that all practitioners know their “chain of command” when they believe that their concerns are not being given proper consideration.

This case presents an opportunity for us to examine some of our policies and procedures pertaining to the monitoring of patients as well as strategies for optimizing defense.


Case No. MC023074, California Superior Court, Los Angeles County (2013).

Ruptured aneurysm results in multi-million dollar verdict and much legal wrangling over pain and suffering

News: After two trials, a man who suffered a debilitating stroke as a result of an undiagnosed aneurysm was awarded, along with his wife, a total of $17.8 million for pain and suffering and other categories of damages. In April 2013, an appellate court ruled that the challenged award would stand, less $9.6 million, and that a new trial was necessary solely on the issue of the amount the defendants should have to pay for pain and suffering.

Background: In April 2013, an appellate court ruled that a large verdict against two doctors and a hospital would stand, but that the amount awarded to the husband and wife plaintiffs for pain and suffering must be determined at a new trial solely on that issue. The winding path that led to the appellate court’s ruling began on July 18, 1998, when the plaintiff husband began suffering from a severe headache accompanied by vomiting and sensitivity to light. Over the next three weeks, he was treated by several doctors, two of whom were defendants in the lawsuit, and he underwent a CT scan at the defendant hospital. The CT scan was read and interpreted by an independent facility that contracted with the hospital to provide that service. No written report of the CT scan was generated, and the results, apparently showing no abnormalities, were orally reported to the plaintiff and his doctors. Fifteen days later, an undiagnosed aneurysm ruptured in a blood vessel near the plaintiff’s brain, which caused a severe stroke that left him permanently disabled.

At trial, the plaintiff’s counsel argued that the plaintiff’s two treating physicians and the hospital were directly liable for failing to diagnose the plaintiff’s aneurysm. Compelling evidence suggested that the independent facility had failed to properly interpret the plaintiff’s CT scan. The facility was not a defendant in the lawsuit, however. Fearing that they could not demonstrate the hospital’s vicarious liability for the facility at trial, the plaintiffs’ counsel de-emphasized the role played by the facility and tried instead to steer the jury toward finding the hospital directly liable.

The strategy was successful. After trial, jurors assigned 6% of the liability to the doctors, 75% to the hospital, and 19% to the independent facility, for which the hospital was found to be vicariously liable. They awarded damages totaling $5.1 million. The plaintiff’s counsel argued that the award was too small, and the court agreed and ordered a new trial unless the defendants agreed to pay $17.4 million. The defendants rejected the court’s additur and prepared for a second trial. Because the purpose of the second trial was only to determine damages, however, the court precluded the defendants from arguing that their negligence was not the sole cause of the plaintiffs’ injuries.

This step is significant because the plaintiff sustained injuries related to his aneurysm that were unpreventable and not necessarily attributable to the negligence of the treating hospital and doctors. For example, the plaintiff’s groin became seriously infected as a result of an angiogram that he underwent while being treated. At the second trial, the plaintiff’s wife offered graphic testimony about the course of this infection and the pain and suffering it caused. The defendants were precluded from demonstrating that this angiogram would have been necessary to treat the aneurysm itself, even if it had been properly diagnosed; therefore, they were prevented from showing that they were not necessarily liable for the pain and suffering attributable to it. After the second trial, jurors awarded the plaintiffs $17.8 million. Of that amount, $9.6 million was for pain and suffering.

The defendants appealed and were granted a third trial, solely to determine how much they must pay for pain and suffering. They still were liable for the $8.2 million portion of the award attributed to other categories of damages at the second trial, but they were permitted to demonstrate that their negligence was not the sole cause of all of the plaintiffs’ pain and suffering.

What this means to you: The first risk management issue that this case brings to mind is the hospital’s arrangement with an independent facility to read the CT scan. Many hospitals have arrangements with other entities to read radiological studies, often at times of the day when there are no radiologists available at the hospital. The most unusual factor in this particular case is that there was no written report generated. This lack of a report means that the hospital relied on something other than a final report of a CT scan. The results apparently were verbally reported by the independent facility to the ordering physician. Consequentially, there is no official report of the radiological study in the medical record. This type of arrangement opens the door to several communication issues. The first obvious communication issue is the possibility that person reciting the verbal report might mean something different from that which the person receiving the verbal report interprets. Any subsequent written reports would have no official report to compare the findings, so the practice of having previous reports available for comparison is not an option. This practice is contrary to the recommendations of the American College of Radiologists. (For those recommendations, go to

Another possibility is a claim by the person receiving the verbal report that the results were never communicated. The likelihood of having a dispute arise in court between the physician who ordered the test and the radiologist issuing the verbal report exists in such an arrangement. The subsequent finger pointing that would ensue would bring bad news to both parties and is a plaintiff attorney’s dream come true.

Another variation of an official report, all too common, is commonly called a “curbside reading.” This usually occurs when a wet reading is needed immediately and it would not be practical to wait for the final report. It can take place in less-than-optimal circumstances, and it is difficult to document properly.

In the case at hand, the verdict is being appealed, but the appeal is limited to the monetary award for pain and suffering. This type of appeal brings up several related risk management and claims management considerations. A somewhat rare option in defending a case is to concede liability. This option may be exercised when it is believed that the evidence against the defense is overwhelming and the defense believes it would be inflammatory to go over all of the departures in detail in front of the jury. Simply, the defense believes the case is indefensible.

The danger in using this type of strategy is that the defense would be barred from presenting any mitigating circumstances involving the treatment of the patient. A plaintiff’s attorney might try to sneak in some of the departures by claiming it is impossible to describe the pain and suffering without describing the treatment.

Sometimes when the argument is reduced to monetary damage, mediation might present a viable option toward settling a case. Mediation will work only if both sides are sincerely serious about wanting to settle the case without going to trial. Mediations have some limitations built into them. Neither side wants to delve too deeply into the facts, as they both realize that should the mediation fail, they will have revealed their trial strategies. Clearly economists (or other financial experts) will play an important role in arriving at the value of economic damages.

Another strategy in settling monetary disputes could be the implementation of a structured settlement. In that case, the plaintiff agrees to forego a lump sum payment and instead agrees to receive a periodic payment for an agreed-upon duration of time. The periodic payment is created through the purchase of one or several annuities which in turn guarantee a specific amount of future payments. This type of arrangement guarantees a larger payment but it is spread out over a period of time. Structured settlements also generally provide beneficial tax consequences for the beneficiary. These are some of the considerations that might be evaluated when managing a defense limited to monetary loss.


New York Court of Appeals, 2013 WL 1294518, 2013 N.Y. Slip Op. 02164.

Primer offers strategies to prevent medication errors

A growing evidence base supports specific strategies to prevent adverse drug events, according to a patient safety primer posted online on the Patient Safety Network (PSNet) for the Agency for Healthcare Research and Quality (AHRQ).

The primer outlines strategies providers can use at each stage of the medication use pathway — prescribing, transcribing, dispensing, and administration — to prevent adverse drug events. These strategies range from computerized provider order entry (CPOE) and clinical decision support to minimizing nurse disruption and providing better patient education and medication labeling. The primer also identifies known risk factors for adverse drug events, including health literacy, patient characteristics, high alert medications, and transitions in care.

To access the full patient safety primer, titled “Medication Errors,” go to