Ohio Court Revives Allergic Reaction Malpractice Suit
News: The Ohio State Court of Appeals ruled a malpractice suit filed by a patient who was given a drug to which she was allergic can proceed. The defendants argued the claim was time-barred by one day. The three-judge panel said the plaintiff timely filed her lawsuit against the hospital, physician, and physician assistant (PA) responsible for ordering and administering the drug. The judges found that while the inciting medical error may have occurred at the start of her five-day hospitalization, the clock for plaintiff to take legal action started when her allergic reaction subsided, and she left the medical center. The plaintiff remained in the same hospital and received care from subsequent providers. The judges held the statute of limitations began to run as soon as the relationship for the condition terminated and not when plaintiff was admitted to the hospital from the ED.
The decision reversed a lower court’s order that granted summary judgment to the hospital and medical staff and remanded the case for further proceedings.
Background: On March 2, 2014, a woman sought treatment at an ED for abdominal pain and a possible urinary tract infection. Under the supervision of the defendant physician, a PA evaluated the patient. The PA ordered Zofran for nausea and Dilaudid for pain.
The plaintiff alleged she informed those in the emergency intake process, and other providers involved in her care, that she was allergic to Zofran. She further claimed hospital personnel were advised the electronic medical record contained this information from an ED visit two years earlier. Despite her instructions, the plaintiff received Zofran.
The plaintiff was admitted to the hospital for further evaluation of her abdominal pain. There is conflicting evidence as to when the plaintiff began exhibiting symptoms of an adverse reaction. The plaintiff stated she noticed hives on her skin almost immediately after the medication was administered while she was in the ED. The defendants argued the plaintiff did not mention any symptoms of an adverse reaction until hours later. Another physician provided care through the night on March 2, 2014, and attributed her situation to a severe allergic reaction to Zofran based on the observed symptoms and the plaintiff’s report of an allergy to Zofran. Treatment for the adverse reaction continued through at least March 4, when the plaintiff’s patient record indicated her symptoms were resolving. She was discharged from the hospital on March 6, 2014.
On March 3, 2015, the plaintiff notified the hospital, PA, and supervising physician of her plans to file a lawsuit. While Ohio’s statute of limitations is just one year, that kind of notice is supposed to give plaintiff an additional 180 days to submit a medical malpractice complaint. The plaintiff filed the suit on Aug. 26, 2015, claiming she suffered a “severe anaphylactic reaction” that threatened her life due to the hospital’s failure to provide the proper standard of care.
The defendants moved for summary judgment, claiming the plaintiff’s letter of notice was sent one day too late. They argued the deadline for the extension was March 2, 2015, which would be exactly one year after she was admitted to the hospital after receiving Zofran. The trial court granted summary judgment, citing an Ohio Supreme Court decision in Asai v. Obstetrics & Gynecology Assocs.
The appeals court found the lower court misapplied the Ohio Supreme Court decision, as the circumstances around plaintiff’s claims were not like those in the Asai case. Specifically, the plaintiff in the Asai case suffered injuries due to an alleged surgical error during a hysterectomy that occurred on March 3, 2016. She was discharged from the hospital on March 7, 2016. Asai returned to the hospital on March 10, 2016, but for the treatment of pneumonia, according to the opinion. Asai argued her second visit extended the patient-doctor relationship and pushed the statute of limitations forward, but the high court disagreed.
The appeals court noted that plaintiff’s case “involves a different set of facts in which a cognizable event does not trigger the statute of limitations. ... Unlike Asai, [plaintiff was] not attempting to expand the statute of limitations based upon a subsequent, unrelated trip to the hospital. [Plaintiff] received continuing and ongoing care until March 6, when she was discharged,” the judges wrote.
What this means to you: Before considering the statute of limitations aspects of this case, a healthcare professional should be cognizant of both the potential direct and indirect liability for failure to review and consider a patient’s medical history. Patient allergies are a crucial aspect of history-gathering since this may bring potentially life-threatening consequences. It is critical to always ask clearly if the patient is allergic to any medications. If they are, clarify the type of reaction. This includes inquiring about the patient at the time the medication is administered. The increasing prevalence of allergic reactions has placed a significant burden on global healthcare to ensure patients do not receive these drugs.
To complicate this issue, providers increasingly are using mid-level medical providers for assistance in their practices. The most common practitioners for this role are PAs and nurse practitioners. They are used to increase overall efficiency by allowing physicians more flexibility, improving overall patient satisfaction, and boosting revenue. A PA can perform most of the tasks of a physician, but a PA cannot practice independently. They can prescribe most medications, but certain medications and patients are excluded. Therefore, a PA must be supervised by a physician. These tasks and treatments provided by the PA can take place only with the approval from the supervising physician.
PAs also are less trained than a physician. This means less schooling, internship, and residency, and testing requirements that are not a stringent. The testing requirements are less stringent. Because of this, PAs can be riskier when involved in more complicated cases, procedures, or patient problems. If a PA makes a mistake that constitutes malpractice, the supervising physician will be vicariously liable, even if the physician did not actively participate in the patient’s care. The law presumes the PA will consult the physician before treating the patient, and the physician will remain informed of the PA’s actions. The relationship is one of respondeat superior, which means the PA is acting as an agent of the physician. Therefore, a PA’s mistakes may result in liability for the supervising physician, the hospital, and any other providers involved in the care.
In this case, the patient took the necessary precautions to protect herself from harm by informing her caregivers of her allergies. In addition, the medical records contained her known allergies as stated on past visits. All safeguards were in place to prevent an adverse event but were undermined by the human factor. Pharmacists use programs to prevent anyone from delivering medications to which the patient is allergic. If a physician inadvertently orders that medication for the patient, the pharmacist will not release it to the patient without a discussion with the physician. However, in the ED setting, the drugs are readily available and can be administered quickly after they are ordered. Staff chose to overlook this information, even though the patient spoke up and the information was stored in the medical record. Most unreported medication errors occur in the ED, and it is important to beware of this potential problem.
Finally, this case is notable for recognizing a medical malpractice action relating to the improper administration of medication does not accrue at the time the medication is administered, but accrues later, after the continued care for treatment of the allergic reaction and medical condition terminated and the patient was discharged.
- Decided Dec. 12, 2022, in the Court of Appeals for the State of Ohio, 12th Appellate District, Case Number CA2022-02-023.
Before considering the statute of limitations aspects of this case, a healthcare professional should be cognizant of both the potential direct and indirect liability for failure to review and consider a patient’s medical history. Patient allergies are a crucial aspect of history-gathering since this may bring potentially life-threatening consequences.
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