By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles
David Vassalli, 2016 JD Candidate
Pepperdine University School of Law
Malibu, CA
News: In 2009, a 64-year-old man went to the hospital seeking treatment for his broken foot and an exacerbation of his chronic obstructive pulmonary disease (COPD). While in the hospital’s emergency department (ED), he was given 3 mg of Dilaudid, a powerful opioid used to manage pain. He was given the drug three times, 1 mg at a time over three hours. The medication warns against use for patients with respiratory problems, such as COPD. According to the plaintiff, the opioid was given to the man without the physician seeing, speaking with, or physically examining him.
Once admitted to the hospital, the doctor ordered the man be given 1–2 mg of Dilaudid, and the nurse administered 2 mg that night. The next morning, and still before being seen by the physician prescribing the Dilaudid, the man was given 2 mg of the opioid. He was seen 30 minutes later by the prescribing physician, who noted that the man appeared hot and sweaty. Just more than an hour later, the man was found unresponsive, not breathing, and without a pulse. He then was transferred to the hospital’s ICU and put on a ventilator.
The lack of oxygen to his brain caused severe brain damage and left him in a vegetative state for the last two weeks of his life in the ICU. The man’s wife brought a wrongful death claim against the hospital for the negligent conduct of its staff regarding treatment of her husband. The plaintiff alleged that the physician failed to administer the lowest possible opioid dosage to control the man’s pain and that failure to do so led to the man’s respiratory failure and death. The defense argued that the man’s existing health problems caused or contributed to the man’s death. The defense pointed to COPD and developing emphysema that was made worse by the man’s smoking and drinking habits. The jury did not agree with the hospital and held it fully responsible for the man’s death. The jury awarded the man’s wife $718,875, which was broken down as $681,875 for the man’s death and $37,000 for the wife’s loss of consortium.
Background: In October 2009, a man entered a hospital’s ED with a broken foot and shortness of breath. The man suffered from COPD, involving emphysema and chronic bronchitis. While in the ED, and before being seen by his physician, the man was given 1 mg of Dilaudid three times over three hours. Dilaudid can slow or stop breathing, and it should not be used with patients who have a history of breathing problems.
After the man received his first 2 mg of Dilaudid, his breathing worsened. He was administered oxygen in the ED. He then was given another dose before being admitted to the hospital. Once admitted, and with the physician’s knowledge of the man’s worsening breathing condition, the physician ordered another 1–2 mg of Dilaudid. A nurse administered 2 mg to the man. The next morning, and still before seeing the physician, the man was given an additional 2 mg of the opioid.
On Oct. 22, 2009, at 3 a.m., nine hours after being admitted to the hospital, the man was first seen by his physician. The physician noted that the man appeared hot and sweaty, but according to the plaintiff, did not attempt to determine why. At 4:05 a.m., just more than one hour after the physician first saw the man, he was found unresponsive and not breathing. Naloxone was administered to reverse the adverse respiratory effects of the opioids, and the man was transferred to the ICU. The respiratory failure suffered by the man restricted blood and oxygen flow to his brain and caused severe and irreversible brain damage. The man spent the next two weeks in a comatose state being kept alive through life support in the ICU. On Nov. 6, 2009, the life support was withdrawn, and the man died.
The man’s wife filed a wrongful death claim against the hospital. The allegations against the hospital were that it fell below the standard of care by negligently administering more opioids than necessary to manage the man’s pain, which put him at an undue risk of harm and, ultimately, led to his respiratory arrest and death. The hospital denied liability and argued the man’s history of smoking, drinking, sleep apnea, and COPD contributed to or caused the man’s death. Experts suggested in testimony that prescribing Dilaudid created an undue risk for this man and suggested that a foreseeable consequence of this departure from the proper standard of care was the death of the man. Members of the jury agreed with the expert and plaintiff, and they found the hospital fully liable for the man’s death.
What this means to you: This case emphasizes the need for caution and awareness when prescribing and administering opioids and other dangerous medications. In this instance, there was a man in the ED using an oxygen tank to help his breathing who also was being administered an opioid with a warning that it can stop breathing and should not be used with patients who suffer from respiratory problems. The simultaneous use of the oxygen and an oxygen-inhibitor clearly indicate that staff members were not being mindful. If a physician remains mindful of specific dangers associated with particular medications as well as the conditions of the patients to whom the medication is prescribed, then a mishap like this one is far less likely to occur. Even with or without knowledge of the man’s breathing problems, the prescribing of numerous rounds of a powerful opioid always should trigger some caution, which in this instance could have led to the inquiry that saved the patient’s life and saved the hospital from legal liability.
Another lesson from this case is the need to know and follow hospital guidelines and safe practice guidelines. In this case, a nurse administered 2 mg instead of 1 mg of Dilaudid when the physician ordered 1–2 mg be administered. The hospital’s own policy stated that “[m]edications ordered for administration in which the dose is expressed as a range shall be administered starting at the lowest dose in the range.” It is clearly a policy at this hospital and arguably a core principle of safe pain management that the lowest effective opioid dosage necessary to achieve pain control should be administered. In recent years, The Joint Commission and the Centers for Medicare and Medicaid Services have established standards that prohibit “range orders.” Physicians are encouraged to write a dose based on the patient’s pain level. In this case, had this standard been followed, the order would had read “Dilaudid 1 mg for pain level 3-6” and “Dilaudid 2 mg for pain level 7-10.” The nurse would have been required to ask the patient to rate his pain from 0-10 before each administration as well as one hour after administration to assess the effectiveness of the drug to reduce the patient’s pain. As such, medical practitioners administering medications, particularly powerful medications with known adverse effects, should seek to administer the lowest dosage given in the order’s range and then increase the number of times that low dose is administered until necessary to manage the pain or the highest dosage of the order’s range has been reached. Dilaudid is known to be seven times more potent than morphine sulfate. Practitioners should proceed with tremendous caution before ordering this drug and must make every effort to perform a face-to-face assessment before ordering it, especially in an emergency setting where the patient is unknown.
Additionally, keep in mind that patients with COPD adjust to lower levels of oxygen. If oxygen is administered to them, they can stop breathing as their brain “‘turns off” the reflex to breathe because the saturation level is above the range normal for the COPD patient. Furthermore, when a hospital creates a policy, departing from the hospital’s policy can quickly lead to liability. The reason is that liability often is based on a medical practitioner not following the standard of care that a reasonably prudent medical practitioner in their situation would follow. Considering that a reasonably prudent medical practitioner would know and adhere to the hospital’s policies, it is a clear departure from the acceptable standard of care when there are codified policies that are not being followed. Bearing that in mind, medical practitioners should know and follow their hospitals’ policies. The physician also had an opportunity to intervene when the patient was examined after admission and noted to be “hot and sweaty.” This was a condition change that required immediate intervention, however, it was ignored and breached the community standard of care.
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Superior Court of Cobb County, GA. Case No. A13A1417 (Dec. 11, 2012).
