News: Several days after its birth and discharge from the hospital, a couple’s child developed jaundice. The condition was reported, and the child seen by several nurses at a hospital, but all failed to inform the family’s physician or direct the parents to the emergency department (ED). Eventually, their physician learned of the gravity of condition and sent them to the ED. Shortly after their arrival, the newborn suffered severe brain injury. After adjusting for the contributory negligence of the parents, the jury award stood at $10.66 million.
Background: Nathaniel was a healthy baby born to a 38-year-old mother and a 37-year-old father. The child was discharged home with his mother the day after delivery. Over the next several days, the mother began to think that Nathaniel had developed a breast-feeding problem. She called the hospital’s lactation service for advice. The lactation nurse who took the phone call recorded that the baby was "really jaundiced, lethargic, and fading fast." The nurse told the mother to report the symptoms to her doctor arranged for an in-person lactation consultation.
When the mother arrived the next day at the hospital for the consultation, a second nurse said that this was the most jaundiced baby she had ever seen. She did not direct the parents to the hospital’s ED, she failed to contact the physician, and did not tell the parents the child was in jeopardy. The second nurse has assumed, incorrectly, that the mother was going to follow up with the pediatrician later that day. She drew blood for a routine bilirubin blood for review by the pediatrician the next day.
The lab did page the pediatrician with test results later that day because the reading of 29.2 was extremely high. Since he had not heard from anyone regarding Nathaniel’s condition, he suspected a laboratory error. The pediatrician arranged for a home health nurse to go to the baby’s home for another blood draw and start phototherapy to the treat jaundice. The second blood result was about 32. The pediatrician was so alarmed that he told the parents to take the child immediately to the children’s hospital.
At the hospital, while preparing for a blood transfusion, Nathaniel suffered severe brain injury. The child sustained kernicterus with athetoid cerebral palsy and severe motor impairment. At the time of the trial, he was 4 years old and believed to be cognitively normal.
The plaintiffs alleged that the hospital nurses were negligent in failing to call the baby’s doctor, failing to direct the parents and baby to the emergency department sooner, failing to tell the parents that their child was in grave danger, and failing to properly respond to what the health practitioners knew was clearly a medical emergency. In addition, the plaintiffs alleged the hospital was corporately negligent in failing to develop and implement policies and procedures for handling newborn jaundice in the course of their lactation services. Finally, the plaintiffs alleged that under these extraordinary circumstances, the hospital failed to obtain informed consent for the lactation services. The plaintiffs’ experts testified that the delay in communication among the providers impeded the appropriate treatment and caused the brain damage.
The defendant denied liability, asserting that its nurses met the standard of care because they had advised the parents to call or see their pediatrician. The hospital denied any obligation on the part of its employees to call the pediatrician directly or send the baby to the ED. The defendant further asserted that the pediatrician, not an ED physician, was the proper person to handle this problem and that it would have made no difference if the pediatrician or ED physician had been called because nothing would have been done until the blood test result came back. The hospital also claimed that the parents were contributorily negligent for not following their advice to call or see the pediatrician. In addition to the kernicterus (jaundice) with athetoid cerebral palsy, Nathaniel also has a kidney disorder, congenital nephritic syndrome, which the defendant initially argued was a contributing factor to the kernicterus, but this theory was abandoned during trial.
After four days of deliberation, the jury found the hospital negligent and had failed to get informed consent for the outpatient services. The jury awarded $10 million to the child and $665,000 to the parents. The jury found the hospital 80% at fault and parents 20% at fault.
What this means to you: With a verdict of this magnitude there are usually multiple issues at hand, including a horrific outcome and a sympathetic plaintiff.
"Patient education for the prenatal and post-partum periods is the generally the responsibility of nurses," says Joan Bristow, vice president of risk management at The Doctors Company in Napa, CA. "With the shorter length of stay for delivery, the need for more patient education is great. While the breakout of the award and assignment of 20% of the fault to the parents indicates that some of the responsibility for the education does lie with the parent, anyone who has had a newborn around knows — and certainly health care providers to these new parents — should know that new, first-time parents need some additional assistance."
Mediums other than personal face-to-face contact are increasingly used to triage and transmit medical advice. These alternative delivery mechanisms should have the same risk management protections afforded to them as the traditional face to face encounters.
"Triage phone calls should be governed by written protocols approved by the obstetricians. And those calls should be answered by an RN who is following those protocols, with documentation of the questions posed and responses received by the RN," Bristow says. "Obstacles to good and or adequate follow-up take the form of the nurse responder not having protocols for emergencies such as a really jaundiced baby, who was lethargic and fading fast. It is also recommended that these logs be reviewed at regular intervals to allow for improvements to be made to the system, as well as check on the quality of RN responses. Annual review and approval by the obstetricians should be written into this process."
As with most medical encounters, documentation is key.
"It is likely the separate medical encounters were documented but not documented in a central location," Bristow says. "If the triage call observations were entered into different medical records, this effectively eliminated an opportunity for timely intervention by a physician. It would be difficult for me to envision that the hospital’s lactation service makes entries into the in-patient medical record when a phone call is received. So, who would have even known about the call? Often these separate nurse obstetrical services assume a distinct division of accountability, and response to potentially emergent situations should be built into the protocols.
"At this point in the patient’s care continuum, it is not clear who was captain of the ship. There must have been an attending physician somewhere in this care who would have had the full and complete responsibility for follow-up, regardless of the source of information. Good follow-up care might take the shape of after-delivery conferences with all disciplines meeting to discuss the overall care of the patient. This provides an opportunity for the health care team to improve on their services without spending more money, but merely spending a few minutes for every patient. Benefits are greater when the multidisciplinary team is together. I have witnessed firsthand the value of the after-delivery conference and its effectiveness. The attendees were those who had any part of the patient’s care, not only past care but future care as well. For example, the conference to which I was invited included the obstetrician, nurse midwife, RN, NP, aide, social services, and home care nurse. They were very well prepared to follow up on any unusual event that occurred during the delivery plus were quick to identify opportunities for additional intervention needs."
Once a critical situation is identified, the label should stick.
"With regard to the lab results, crisis results are well known in every lab, and every health care provider should be aware of those tests that affect their particular area of service. Lab personnel have a responsibility to recognize critical levels and alert the attending physician or the physician who ordered the test. The alert should be made by phone to ensure that a living, breathing body hears the message. Backup for lab personnel’s identification of critical results rests with the nursing personnel who receive the results. That nurse has the same responsibility as the lab — direct communication with the attending physician. Written policy and procedures will help to solidify this process," Bristow says.
"Finally, once the gravity of the situation was realized, it seems that the parents were simply advised to go the hospital, not necessarily the emergency department. Under the circumstances, the parents should have been directed to the ED and a phone call made to alert the facility and the attending physician. Any health care provider who recognizes an extremis situation has the added burden of follow through. The average layperson isn’t knowledgeable of the intricacies of hospitals and EDs in particular. A phone call to the ED physician gives the ED time to prepare. More crucial time may have been lost if the parents went to admissions in lieu of the ED," concludes Bristow.
Reference
- James A. Degal, guardian of the estate of Nathaniel Johns, a minor, and Douglas Johns, individually v. Franciscan Health System West, King County (WA) Superior Court, Case No. 99-2-04211-5 KNT.
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