News: The patient, a 22-year-old college soccer star, was diagnosed with athletic pubalgia by a general surgeon and underwent surgery in 2009. The surgery was performed and the patient was discharged the same day, without the physician realizing that a bowel perforation had occurred during the surgery. The patient experienced severe abdominal pain and was prescribed multiple pain medications, which were not effective. The following day, the patient went to a hospital emergency department where a CT scan was performed. Due to a lack of communication, the scan was performed with a barium contrast that is contraindicated in any patient with a known or suspected bowel perforation. The scan revealed the perforation along with spillage of bowel contents and barium throughout the patient’s body. The original surgeon repaired the bowel, but the patient required an extended stay and additional surgery. He continues to have barium in his system and pain from deep scar tissues. The patient brought suit against the surgeon and hospital. Both defendants denied liability. The jury found both were negligent, but only the hospital was found liable for the barium injury. The jury awarded the patient $3.35 million in damages.
Background: The patient was a prominent college soccer star who had obtained a contract to play professionally in Colombia. He was diagnosed with athletic pubalgia, commonly known as a sports hernia. In 2009, he underwent surgery to repair the injury. It was performed by a general surgeon who frequently had professional athlete patients. After the surgery, the patient was discharged the same day; however, a bowel perforation that had occurred during the surgery was not diagnosed.
The patient experienced severe abdominal pain within an hour of discharge. He was prescribed multiple pain medications that proved ineffective. Because of continued and worsening pain, the patient went to an emergency department the next day. It was determined that his white blood cell count was high. The original surgeon was concerned that a possible bowel perforation had occurred, and that surgeon instructed a resident about this concern. During a shift change, the resident turned over the case to a second resident and instructed the second resident to order a CT scan. However, the first resident did not inform the second resident that a bowel perforation was a concern. Due to this failure, the second resident ordered a CT scan with a barium contrast. A radiology expert opined during trial that barium is never administered to a patient at risk for perforation or who has recently undergone an abdominal surgery. With these patients, if there is a perforation that the physician isn’t aware of, the contrast would be absorbed into the body and wreak havoc. It could cause serious problems such as extreme inflammation and infection.
The scan revealed the bowel perforation, as well as spillage of bowel contents and barium throughout the patient’s body. The original surgeon was brought back for another surgery to repair the bowel. The patient remained in the hospital for 18 days. He required more surgery to remove abscesses in his abdomen and had two drains placed in his back for infected fluid that had accumulated around his organs. Despite extensive physical therapy, the patient was unable to regain his core strength, which led him to abandon pursuing a professional soccer career. He continued to suffer pain from deep scar tissues caused by barium, which can remain in a person’s body indefinitely.
The patient brought suit against the original surgeon and the hospital, and he alleged that each was negligent in different ways. For the surgeon, the patient claimed that the perforation was negligent and set in motion the events leading to the barium mishap.
The hospital’s liability rested solely on the barium being used in the CT scan. The suit claimed it breached the standard of care by administering the barium contrast to a patient who was at high risk for a bowel perforation. A unanimous jury found that the surgeon and hospital’s conduct fell below the standard of care and thus they breached their duty to provide the patient with appropriate care. However, the jury found that only the actions of the hospital were the cause of injuries to the patient. As a result, the hospital was 100% liable for any injuries, and the surgeon was not liable. The jury awarded $3.35 million in damages.
What this means to you: This case reveals critical elements of a medical malpractice action that must be established before a physician or hospital can be found liable.Medical malpractice is a specific type of negligence action that generally requires a duty to an individual, a breach of that duty, causation, and damages. Thus, if a patient fails to establish any single element of these four, then there cannot be liability, despite the fact that an injury occurred. In this case, the jury found that the physician’s conduct fell below the applicable standard of care; thus, he breached his duty to the patient. However, the physician ultimately was found not liable because the third element, causation, was not met.
Causation in this sense consists of distinct elements: factual cause and proximate cause. Factual cause was easily satisfied here. "But for" the physician’s perforation of the bowel, the patient would not have required the CT scan and suffered injuries from the barium. The physician’s perforation set into motion the series of events that resulted in the patient’s injuries, so without his actions, none of these events would have occurred.
However, "proximate cause" is a more difficult concept. It essentially is legal fiction, in which a physician or hospital might escape liability based on the acts of a third-party or the un-foreseeability of the injury. This concept can be a great method for defending against a medical malpractice case, as a lack of proximate cause eliminates liability despite the physician or hospital failing to meet appropriate standards of care. In this case, the jury determined that the actions of the hospital by administering the CT scan with barium essentially superceded the actions of the physician, thus breaking his link to any injuries incurred, despite his actual responsibility for creating the events in the first instance. When an injury occurs, physicians and hospitals should carefully investigate the events that led to the injury. Some events might be able to be used as a defense to limit liability, especially when there are actions of a third-party such as other medical professionals or even patients themselves.
Hospitals and physicians alike often lose sight of the fact that residents are students. Residents always should be functioning under the supervision of an attending physician, and it is the medical staff and the hospital’s residency program’s responsibility to ensure that this supervision is happening. Bowel perforations during any type of abdominal surgery are not uncommon and are known risks. An experienced attending physician would know this fact and most likely would ask the right questions to ensure that the use of barium contrast was appropriate. A newly licensed resident physician might not.
In this case, the necessary hand-off communication that occurred during shift change took place between two students, and critical information was omitted. The second resident had a responsibility to contact the patient’s attending physician, as the first resident had done, and inform him of his or her plan to order the barium. Additionally, the patient’s medical record, had it been reviewed by the resident, nurse, or technician administering the barium contrast, would have listed the previous bowel surgery the day before, which is a known contraindication for the use of barium. Communicating with the attending and reviewing the medical record were two barriers that could have blocked the errors from happening had they been used by providers of this patient’s care.
Communication among medical professionals and hospital staff is always of critical importance, and a lack of communication can severely injure patients and create liability for physicians and hospitals. This communication might be difficult for hospital staff members, especially where there can be numerous individuals with different responsibilities all relating to a single patient’s treatment. Having the proper procedures and standards in place for facilitating communication among all these individuals is important to prevent injury and defend against liability.
Rotations or shift changes are a necessity and reality in the hospital setting, but they can create extra difficulties regarding communication, as evidenced in this case in which the information was lost during a shift change of two residents. Detailed written details of the shift’s events can help alleviate this potential for information slipping through the cracks, although there is no way to ensure with perfect certainty that information always will be conveyed. Having appropriate and reasonable, perhaps even overly cautious, procedures in place can go a long way toward preventing such occurrences in the first case and provide some defense during trial to allegations of improper or insufficient communication standards.
Court of Common Pleas, PA. Case No. 111201343. June 30, 2014.
