Legal Review & Community-Gunshot victim dies in OR: $1.4 million verdict
News: The case involves the victim of a fatal gunshot wound to the chest. The bullet penetrated the patient's right lung and caused significant internal bleeding. The plaintiff alleged that the victim was awake at the scene and in the emergency room but died of uncontrolled bleeding resulting from injury to the lung. The defendant hospital contended that the patient lost significant amounts of blood before arriving and while at the hospital and that appropriate care was given to stabilize him before surgery.
Background: The 24-year-old man was shot at approximately 8 p.m. on May 26, 1998, by his girlfriend. The bullet penetrated the patient's right lung and did massive damage. He arrived at the hospital at 8:08 p.m. The plaintiff alleged that the patient was conscious in the emergency room and that patient records were altered, allegations the hospital disputes. Emergency room personnel inserted a chest tube at 8:12 p.m. to evacuate the hemothorax, and 800 cc of blood were drained. At 8:30 p.m., a chest X-ray indicated a massive right hemothorax (with a bullet in the lung) and ongoing blood loss.
The hospital asserted that it acted appropriately by administering fluids to the patient in an effort to stabilize him before surgery and, further, that if the patient was taken to surgery before stabilization with fluids and blood, he would have died immediately as a result of the stress of surgery and/or general anesthesia. The hospital said that the patient was taken to the operating room at 9:12 p.m. to repair the bleeding and that timely intervention occurred.
The plaintiff claimed that the victim was not transferred to the operating room until 9:40 p.m. When the chest was opened, surgeons found no circulation, blood pressure, or spontaneous cardiac activity. According to the defense, the surgeon massaged the heart for nearly two hours. The bleeding was finally controlled, but the patient could not be resuscitated and was pronounced dead at 12:30 a.m. on May 27, 1988.
The plaintiff claimed that the doctor should have performed chest surgery when 800 cc of blood were drained and certainly after the chest X-ray showed massive internal injuries to the lung. In short, the plaintiff contended that had the surgery taken place immediately after the blood drainage at 8:12 p.m. or chest X-ray at 8:30 p.m., the patient could have survived.
The plaintiff contended that the Advance Trauma and Life Support Guidelines adopted in New York clearly indicate that, when an X-ray demonstrates massive hemothorax, the appropriate course of action is to immediately open the patient and stop the bleeding.
"In this case, the patient bled out and was not taken to the OR until after he crashed," says the plaintiff's attorney, Rhona Silverman of Bruce G. Clark and Associates in New York City. "Hospitals not only need to have protocols, but staff must follow up on them or people will die," she says. Notably, the defendant hospital was not a level I trauma center and hence not subject to the state's Advance Trauma and Life Support Guidelines.
The trial court reduced the jury's verdict to less than $700,000, and the hospital has appealed based on liability and damages.
What this means to you: This case serves to highlight three issues for consideration by health care risk managers, says Robert E. White Jr., a medical malpractice consultant in Miami and former senior vice president of ProNational Insurance Company in Coral Gables, FL.
First, though the guidelines were not admissible, the danger that guidelines present is illustrated in this case. "Where guidelines exist and the health care provider goes against the guidelines, he or she should be very careful to document [his or her] awareness of the guidelines and the reasons why the guidelines were not followed," he says.
Avoiding 'cookbook medicine'
"This case makes the point that guidelines can create cookbook medicine. This is not something we want to see as a society because it is the experience and judgment of physicians that we rely on for the best of care. Good instincts are what we want to see in a doctor, and these instincts are invaluable to a patient," White says.
Second, from a clinical perspective, internal bleeding requires immediate action, he says. "In a case where there is significant blood loss, you have to find the source of the bleeding and stop it immediately," he advises. "Regardless of guidelines, the standard of care is to explore the wound, to find the source of bleeding, and to be sure the patient does not continue to bleed. Here, it appears, based on the defense's theory, that they attempted to stabilize the patient and performed emergency surgery to identify the source of the bleeding and stop it. This patient could have been taken to surgery at 8:12 or 8:30 and still expired because of the bullet wound. In the case of a bad outcome, the guideline is the sword and never the shield. The shield is documenting why the guideline was not followed," he notes.
Third, the allegation of alteration of the medical record illustrates the danger such an allegation can have in a jury trial, he says. "Whenever there is a suggestion that the records have been altered, it becomes problematic where credibility is at stake or where the jury must rely on the observations of the health care providers involved. If the jury starts to believe that the records are misrepresentations, then all of the themes of the defense become questionable to the jury. In this case, if the plaintiff gets the jury to believe that the records were altered, then why would the jury believe anything the defense has to say?"
While the allegations of records alteration is a major concern at trial, White says he feels that well-qualified handwriting experts for the defense should be able to support the validity of the chart and the credibility of the health care delivery team, and he observes that the tactic of alleging a record alteration is commonly utilized but seldom proven to a jury's satisfaction. The defense never takes a case to trial when it knows or suspects that the record has been altered, he says.
White says he believes that if the records were adequately documented regarding the patient's clinical condition, and the defense had experts to support the authenticity of the records, then defending the physician's clinical judgment by taking the case to trial was the correct course of action.
In conclusion, White says that everyone involved in the defense of health care providers must act to support the shrinking envelope of clinical judgment that physicians have left to them when resolving claims against them.
Reference
Darlington V. St. Barnabus Hospital, Bronx County, New York Supreme Court, Index 13767/90.
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