Legal Review & Commentary-Jury awards $46.2 million to brain-damaged student
By Pearl Schaikewitz, JD
Legal Consultant, Atlanta
News:
A New York jury slammed a hospital with a whopping $46.2 million verdict in a case involving a patient who was allegedly hypoxic for two hours before he was intubated. The judge reduced the award to $12 million, and the hos pital has appealed.
Background:
The 22-year-old patient, a Peruvian college student, was in New York recuperating from jaw surgery performed one month earlier in Balti more. His mouth was wired, with a limited opening. He developed fever and a headache, and was seen on two consecutive days in the emergency room. A work-up was done for a possible infection related to the jaw surgery. The man was given anti-viral medication and sent home.
One week later, he had a seizure and was taken by ambulance to the ER. The patient was admitted by a senior attending neurologist, who left an order to do a CT scan to rule out lesions, and if that was negative, to do a spinal tap to rule out meningitis and any other infection of the central nervous system. The resident carried out the orders. The CT scan was negative. The patient became agitated and combative during the spinal tap, so the resident ordered Ativan.
According to one of the plaintiff's attorneys, Kevin McDonald of Queller and Fisher in Man hattan, hospital records indicated the patient received an excessive amount of the sedative. The patient's spinal fluid tested negative for infection, but his breathing became shallow. An arterial blood gas was taken, which showed hypoxia. The plaintiff claimed the resident took no action for an hour and fifteen minutes, when he repeated the blood gas. It showed a dramatic worsening of the hypoxia. The patient's PO2 went from 66 to 43.
The hospital claimed that an oxygen mask and ambu-bag were used during this time, but there was a limited opening to work with since the patient's mouth was wired. Fifteen minutes later, the patient stopped breathing. A respiratory arrest code was called. A resident anesthesiologist came but could not intubate the patient due to his wired jaw. The resident summoned the attending anesthesiologist, who performed a nasotracheal intubation in approximately 20 minutes. Two hours had elapsed from the first indications of hypoxia, the plaintiff claimed.
Barbiturate coma induced
The next day, the patient began experiencing uncontrollable seizures, and he was put into a barbiturate coma for two months. When he emerged, he manifested numerous neurological deficits. He suffers from severe short-term memory deficits, a permanent seizure disorder, and walks with a lurching gait. McDonald alleged the patient should have been intubated or transported to ICU within 15 minutes after the first arterial blood gas was done.
According to McDonald, the hospital claimed that viral encephalitis, not the hypoxic episode, caused the patient's brain damage. However, tests run by the Centers for Disease Control and Prevention in Atlanta were negative for encephalitis, he says. The hospital also argued that the patient was receiving oxygen by nasal cannula, but the evidence showed that the entry was post-intubation, McDonald says.
At trial, the hospital denied that the respiratory arrest had occurred, he says, although the resident anesthesiologist said she was called in to intubate a man "in respiratory arrest."
The patient's mother testified that none of the attending physicians ever told her about the hypoxic episode, that a code was called, or that her son was put into an intentional barbiturate coma.
What it means to you:
A verdict of this magnitude is harrowing to a risk manager, says Georgene Saliba, RN, BSN, FASHRM, HRM, director of claims/risk management for Lehigh Valley Hospital and Health Network in Allentown, PA.
The jury punished the hospital on several levels, Saliba says: for a seemingly missed diagnosis, missed opportunities, and not keeping the patient's mother fully informed about her son's condition. "The physicians had opportunities to intervene in this case, and they missed them. When they did intervene, it was too late. And the patient was left with severe neurological deficits."
Saliba's initial concern is the fact that the patient returned to the ER on two consecutive days. "Anytime a patient returns to the ER in less than 24 hours, it is a red flag. Further eval uation was needed, and the hospital should examine its policy and procedure in this area." Saliba notes that the patient returned one week later with seizures, indicating neurological compromise. "This supported the plaintiff's argument that the staff should have picked up on a neurological problem before that time. Agita tion also can be a sign of a neurological compromise. The ER also should have pulled the old records," she says.
Seriously problematic was the fact that the patient had an arterial blood gas that showed hypoxia. The first oxygen level was an abnormal 66. What was the intervention? "The standard of care probably required that they attach a pulse oximeter. You don't wait an hour and 15 minutes for a patient who is already hypoxic to get worse." By the time the patient's oxygen level was at 43, there was no question that he was compromised, she says. "Then there was the delay in the intubation. Why couldn't the resident anesthesiologist cut the wires holding the jaw?"
It is clear the patient had an anoxic insult, especially in light of the first negative CT scan, she says. Saliba also says the jury was left with the impression that no one was in control of this patient. "Was the resident neurologist in charge? Where was the supervising physician? The resident failed to intercede on the blood gas. The resident anesthesiologist could not intubate and had to call an attending anesthesiologist."
Charting and chain-of-command issues
This is a chain-of-command issue as well, Saliba says. "What is the policy and procedure regarding when the resident is supposed to notify the attending? We cannot assume there was a problem with the attending neurologist in this case if he did not know about the patient's condition. But the facility needs to go through an educational process as to what the residents knew or should have known and when they needed to call for help. Here, no one called for help until the patient's hypoxic level was life-threatening."
There are charting problems in this case, too, Saliba says. She notes that the evidence showed that oxygen by nasal cannula was an entry post-intubation. "Obviously, you can't tell the patient to stop crashing so you can write things down. But it is also of paramount importance that your documentation is a legible, accurate, complete, and concise reflection of what transpired."
Classic systems breakdown
This case demonstrated a classic systems breakdown, and many questions need to be asked, Saliba says. "Why was the patient sent home on two consecutive days? Why wasn't the patient intubated immediately when hypoxia presented? Why did the patient wait an hour and 15 minutes before any intervention, and then only a repeat blood gas was done? Why couldn't the resident anesthesiologist intubate this patient? Why did it take the attending anesthesiologist an additional 20 minutes? Why didn't the documentation support the actual events? Why wasn't the patient's mother informed of what was happening? The goal of risk management is to keep delving down into these matters and look at how to improve processes to make them work for the patient as well as the health care providers."
Reference
Weinstein v. New York Hospital, New York County (NY) Supreme Court, Case No. 20042/1994.
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