News: Parents of a toddler with cystic fibrosis and chronic pseudomonas sought treatment for the child’s complaints of abdominal pain. An emergency physician ordered X-rays and prescribed anti-nausea medication. The following morning, the child was found not breathing due to air escaping from her bowels and into her heart, causing obstruction.
The parents filed a malpractice suit, alleging the physician and hospital failed to diagnose their daughter. A court granted summary judgment in favor of the hospital. On appeal, the court ruled the parents sufficiently raised a question of fact to support the litigation.
Background: In May 2015, a 2-year-old girl who suffered from cystic fibrosis and chronic pseudomonas complained of moderate abdominal pain. An emergency physician ordered X-rays of the child’s abdomen. The physician personally reviewed the films and diagnosed the child with constipation, prescribed a laxative, and sent the child home.
Approximately one week later, the child’s parents brought her to the same hospital. By this point, the child’s complaints had increased to more severe abdominal pain, abdominal distension, abdominal cramping, vomiting, and diarrhea. A different ED physician conducted a physical examination and ordered an X-ray. The physician determined the child’s bowels were dilated and filled with stool and gas, similar to the previous X-ray. This subsequent physician diagnosed the patient with acute vomiting, likely a viral syndrome, and prescribed an anti-nausea medication. The physician discussed the findings with the parents and discharged the child at approximately 1:30 a.m.
Around 2:30 a.m., the child fell asleep on her mother’s chest. When the mother awoke at 6:00 a.m., the child was no longer breathing and was unresponsive.
Later that morning, while the hospital and physicians were unaware the child had already passed away, a radiologist reviewed the child’s X-rays and described a “rather notable obstipation,” bowel distension, and a small amount of bowel dilation — similar to the previous physician’s interpretation.
An autopsy revealed the child’s cause of death as severe malabsorption syndrome secondary to cystic fibrosis and acute cardiac pump failure secondary to right heart air embolism. The pathologist indicated the child suffered torsion of the omentum, leading to avascular necrosis of the small bowel, which was grossly dilated. Because of the child’s severe bowel condition, air escaped from her bowels and reached her heart, causing an air embolism.
Following the child’s death, the parents filed a lawsuit against the hospital and the second ED physician. The initial physician and radiologist were not named. The parents resolved their claims against the individual physician, and the hospital filed a motion for summary judgment, claiming there was no violation of the standard of care. The parents and hospital presented conflicting expert witness testimony concerning the alleged violation.
The hospital presented an expert physician who was a professor of surgery at a university, the surgeon-in-chief at a children’s hospital, a board-certified medical examiner, surgeon, pediatric surgeon, and advanced trauma life support provider. The hospital’s expert testified there was nothing the hospital could have done during the second visit to prevent the child’s death due to her extensive health complications and the extent of the bowel damage.
The plaintiffs presented two expert physicians: a board-certified radiologist specializing in neuroradiology and a board-certified internal medicine and emergency medicine physician who also was a professor of medicine at a university. The radiologist claimed the films revealed serious bowel complications, suggesting the need for emergent medical or surgical attention. The emergency physician testified the hospital breached the standard of care when the X-rays were reviewed only by the attending physician, rather than by a radiologist, before discharge. This expert claimed the child would have survived if she had been timely diagnosed and treated.
The trial court granted the hospital’s motion for summary judgment, ruling the parents had not raised a genuine issue of fact that the hospital’s alleged negligence caused the child’s death. The plaintiffs appealed, and the justices ruled the plaintiffs’ emergency medicine physician’s testimony was sufficient.
What this means to you: This case reveals a common theme in medical malpractice actions: the critical importance of expert witnesses and testimony. As often is the case, both sides presented testimony from expert witnesses — qualified physicians who would support the actions taken by the respective side in the prosecution or defense of the litigation. In this matter, the parents retained two expert physicians while the care providers presented one such expert physician. Since juries are composed of laypersons, expert testimony almost always is necessary in medical malpractice cases, except when it is so abundantly obvious even to the untrained eye or mind that negligence occurred.
But for most cases, choosing the right expert can make or break a defense. First, expert witnesses must be appropriate and qualified. An important lesson here is the defendant care providers challenged one of the parents’ experts based on his qualifications, claiming he lacked sufficient expertise to testify as to the standard of care for ED administration and lacked qualification to estimate the child’s chances of survival because he did not specialize in pediatric medicine or surgery. Initially, this challenge was successful.
While this was overturned on appeal, the lesson remains: A care provider should carefully examine the background, training, qualifications, specialization, and every aspect possible of an opposing expert to determine whether it is a fruitful avenue to challenge the so-called expert’s ability to offer an opinion. A successful challenge to an opposing expert can disqualify that individual’s testimony and greatly damage an opposing party’s case. Similarly, choosing the right expert to support the physician or care provider’s defense is equally critical, as it is inevitable the same scrutiny will occur from a plaintiff’s side.
Tying into these procedural issues is another lesson from this matter: Appeals present the opportunity to rectify erroneous decisions — and those decisions can flow both ways. In this case, the trial court erred by giving an inordinate amount of weight to one side’s expert while discounting the other side’s expert. That also could have been prejudicial to the defendants, and examining avenues for relief from erroneous decisions is necessary in medical malpractice actions.
There are several methods for limiting exposure in advance of litigation. However, once litigation has occurred, mitigating risk becomes more challenging. In this case, the first physician avoided these disputes and appellate gymnastics because he was not named in the suit. While the terms of the settlement are unclear, reaching an agreement places the outcome in the hands of the parties rather than a jury, mitigating risk and reducing exposure. Runaway juries who award millions of dollars in damages can be prevented — and cases such as this present circumstances ripe for an emotional jury to award a significant verdict.
Beyond a complete settlement, there are other potential methods for mitigating risk while continuing to challenge damages, such as a “high-low” agreement. In a high-low agreement, the parties agree to a minimum and a maximum recovery, thereby guaranteeing an injured party will recover some amount while limiting the maximum exposure for the care provider. For example, the parties may agree to a $1 million minimum and $2 million maximum. If a jury awards $50 million, the care provider will be protected and only have to pay the $2 million maximum. In cases where an injury is undisputed, it may be useful to agree to pay some amount while reducing exposure. It is important for care providers to critically evaluate the evidence and litigation positions throughout the case to determine whether such mitigation methods are appropriate, or whether the injured patient’s case is subject to defeat altogether through a more efficient method, such as a motion for summary judgment.
Finally, note here an expert witness was needed in litigation because the physicians did not initially call an expert to review the child’s studies during the multiple ED visits. When patients keep returning with similar or worsening complaints about an ailment in the same location, physicians must look past the obvious diagnoses that are not responding to their interventions, and if they cannot think beyond those diagnoses, find someone who can. In this situation, perhaps the patient’s diagnosis was not survivable, but patients must be provided the best and most thorough care possible. Choosing the path of least resistance is often the direct way to get to the litigation highway.
REFERENCE
- Decided April 21, 2022, in the Court of Appeals of the State of Washington, Case Number 38054- 8-III.
This case reveals a common theme in medical malpractice actions: the critical importance of expert witnesses and testimony. As often is the case, both sides presented testimony from expert witnesses — qualified physicians who would support the actions taken by the respective side in the prosecution or defense of the litigation.
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