$9 million awarded to patient after missed diagnosis of broken neck
By Damian D. Capozzola, Esq., The Law Offices of Damian D. Capozzola, Los Angeles
Jamie Terrence, RN, Director of Risk Management Services, California Hospital Medical Center, Los Angeles
News: The patient presented to the hospital complaining of neck pain after being involved in an automobile accident. CT scan imaging was not performed on the neck/cervical spine. The patient was discharged home simply on the basis of a point tenderness examination in that area. Less than 48 hours later, while walking, he suddenly felt a shock of pain in his neck, and his left arm went numb. He was taken to the hospital, where a fracture in the cervical spine was revealed by X-rays. The patient’s left arm sustained severe nerve damage and is essentially paralyzed, and his neck and left shoulder are in constant pain. The patient sued for negligence, and his wife asserted a claim for loss of consortium. The hospital and the doctor denied that the care was negligent. The jury sided with the patient and awarded $7 million in damages and another $2 million to the wife for loss of consortium. Both defendants are jointly and severally liable for 100% of the verdict.
Background: The patient, a man in his early 50s, was involved in an automobile accident in which the vehicle rolled twice. He presented to the emergency department complaining of neck pain. The patient contended that even though hospital policy was to perform CT scan imaging and obtain three views of the cervical spine when the patient had been involved in a high-energy trauma such as a motor vehicle accident, and even though CT scan imaging was performed on the head and middle back (thoracic spine), no such imaging was ordered on the neck and cervical spine. According to the doctor, the doctor simply performed a point tenderness examination in that area and concluded that the patient could be discharged home. The patient contended that no such point tenderness examination even took place.
Just two days later, while recovering at a friend’s house, after spending most of the preceding 48 hours in bed, the patient walked to the bathroom and immediately felt a searing pain "like a bolt of lightning went off in my head." His left arm went numb. He returned to the hospital, where X-rays taken of his cervical spine for the first time showed a fracture around the fourth and fifth vertebrae of his cervical spine. He immediately underwent emergency surgery for his left arm, formerly his dominant arm, and remains essentially paralyzed in that arm. It appears the condition may be permanent. The patient also lives in constant neck and left shoulder pain, and the patient and his wife testified that their marriage has been significantly strained as a result of the physical and emotional toll of the events.
The patient and his wife sued for negligence and loss of consortium, respectively. In particular the patient claimed that the defendants (the hospital and the doctor) failed to properly diagnose his broken neck in the first instance. The patient claimed that when he subsequently started moving around 48 hours later, the damaged vertebrae shifted and impinged on a nearby nerve root, which caused significant nerve damage. All of these problems could have been avoided if the cervical spine had been imaged, pursuant to hospital protocols, and the fracture diagnosed, the patient claimed.
Also noteworthy in this particular case is that when the patient initially presented to the hospital, the lead doctor was the only doctor on duty supervising what already had been a busy morning in the emergency department. The lead doctor already had driven more than three hours to work, worked a full eight-hour shift, and was roughly three hours into an immediately following second shift, which suggests that the doctor might have been fatigued.
The defendants contended that the care provided had been proper. The jury ultimately agreed with the patient and his wife, and the jury awarded the patient $7 million in damage. The wife received $2 million in damages.
What this means to you: In any high-impact motor vehicle accident, first responders place victims on back boards and in C-collars to prevent further injury to the head, cervical, thoracic, and lumbar vertebrae. On arrival to the nearest trauma center, these life-saving devices are not removed until there is confirmation via X-ray, CT, MRI, or other imaging study that there has been no injury to these delicate structures. Even if the receiving hospital is not a trauma center, it does not negate the responsibility of the emergency department staff to follow this standard protocol.
Make sure that your hospital emergency department has these policies and procedures in place and that they are followed. It is not uncommon for hospitals to create policies with the best of intentions, but then fall short by not ensuring that all individuals affected by them are not only aware of them, but also well-trained to implement them. In this case, there was evidence of improper or incomplete training as well as a lack of follow through in the implementation of the protocols. If there are written policies that are not followed, it makes it easy for plaintiffs to allege negligence.
Also, there was some evidence in this case of nurses being afraid to insist on CT scan imaging of the cervical spine when the patient initially presented. One unwritten rule of risk management states that no critical decision should ever be left up to a single individual. For this reason, surgeons are never solely responsible for a sponge count, for example. The airline industry is another example where this rule applies. In emergency departments, doctors and nurses must "have each other’s back." Nurses need to feel confident to express concerns in real time when policies are not being followed. This situation can happen only when the physicians they work with not only allow this practice, but encourage it and praise their colleagues for their teamwork and cooperation. In a punitive culture of physician dominance and tolerance of bad behavior, a nurse will be less likely to challenge the decisions of doctors who might not be following protocols for fear of reprisal.
Nurses and physicians also have a responsibility to bring concerns about their team members’ personal behaviors forward to hospital leadership. In a true culture of safety, recognizing limitations that stressors place on healthcare workers is critical. Fatigue, family, and social pressures can weigh heavily on the physician or nurse’s ability to function. Allowing the caregiver time off for a "mental health day," an extended leave, or even providing counseling should be an important part of a program to prevent an over-worked or overstressed professional from making an avoidable error. In this case, the judge did not allow the patient to present evidence of ongoing significant personal issues in the lead doctor’s life at the time of the incident. However, in pretrial discovery, it was learned that the doctor was going through divorce proceedings and was scheduled to be deposed in those proceedings the next day. The judge determined that such evidence would be overly prejudicial to the defendants and excluded it from evidence. However, from a risk management perspective, it is natural to wonder whether the doctor’s personal distractions played a role in the events and, in particular, in the decision not to order any imaging of the cervical spine.
Finally, note that Wyoming is generally known as a conservative venue, thus generally a good venue for defendants on the theory that Wyoming juries are unlikely to award large verdicts. It is hard to imagine, for example, that any lawyer or plaintiff receiving a favorable verdict in a notorious jurisdiction such as West Virginia or California ever said afterward, "If only we’d been in Wyoming!" However, here a Wyoming jury obviously did award a very significant sum. This case suggests that it is unwise to put too much stock in the reputation of the jurors of the venue if the facts of the case otherwise suggest that a major adverse verdict might be warranted.
Reference
Wyoming District Court Case No. 1:10-CV-00202-ABJ; 10th Circuit Court of Appeals Case Nos. 11-8102 & 12-8027
