Failure to diagnose fracture of the cervical spine
$9 million verdict awarded in case of 51-year-old who presented to the emergency department
By Jonathan D. Rubin, Esq.
Partner
Kaufman Borgeest & Ryan
New York, NY
Sandra L. Brown, Esq.
Associate Attorney
Kaufman Borgeest & Ryan
New York, NY
Leilani Kicklighter, RN, ARM,
MBA, CHSP, CPHRM, LHRM
The Kicklighter Group, LLC
Tamarac, FL
News: A 51-year-old man presented to the hospital emergency department (ED) after a vehicular rollover accident with the chief complaint of neck pain. The ED physician failed to order X-rays of the patient's neck, failed to examine the patient, and failed to provide a cervical collar at the time of discharge. Four days later, the patient returned to the hospital after losing the use of his left arm and shoulder. He was diagnosed with multiple unstable cervical spine fractures and underwent emergency neck fusion surgery. The patient and his wife sued and claimed that had the physician properly diagnosed his condition in a timely manner during his initial visit to the ED, it would have prevented further injury. The jury returned a verdict of $9 million, including $2 million for spousal claims of loss of consortium. Post-trial, the loss of consortium award was reduced to $500,000 for a net award of $7.5 million.
Background: On Dec. 9, 2008, a 51-year-old oil field worker was on the job and driving a company truck when he was involved in a rollover accident. At the scene of the accident, he was immobilized on a backboard, and a neck brace was placed by emergency response workers before he was rushed to the hospital. The triage nurse noted the patient's chief complaint was neck pain, and the nursing notes stated the patient had been restrained and driving when the rollover vehicle rolled approximately five times. While the emergency physician ordered X-rays of the patient's head and back, he discharged the patient the same day without examining the patient, without taking X-rays of his neck, and without providing him with a cervical collar (C-collar).
The patient returned to the hospital four days later after losing the use of left arm and shoulder. Upon presentation to the hospital, he was immediately placed in a C-collar. A CT was ordered that showed a C5 articular pillar fracture with mild anterolisthesis at C4-5 and severe disc narrowing at C4-5; possible flexion teardrop fracture of C5; and a small bone garment within the left C4-5 nerve root canal laterally from the articular pillar fracture. Emergency neck fusion surgery was performed the same day. In follow up on Dec. 30, 2008, the surgeon found that while he was able to avert further damage with the surgery, the surgery could not undo the damage that already had been done. Since the initial emergency neck fusion surgery, the patient has had a second neck fusion operation as well as several procedures aimed at reducing his pain. The patient has been unable to work since the accident.
The patient and his wife filed suit in federal court against the ED physician and hospital asserting negligence and medical malpractice claims. Plaintiffs claimed the defendants negligently failed to diagnose a fracture or dislocation of the cervical spine that was unstable and which led to the development of neurological injury with dysfunction of his left arm and shoulder. Plaintiffs co-ntended that had the physician properly diagnosed his condition in a timely manner during his initial visit to the hospital ED, it would have prevented further injury. The patient's wife also filed a claim for loss of consortium.
The jury determined that the defendants' negligence caused the patient's damages and awarded the amount of $7 million, including $217,904 for past medical expenses, $557,337 for future medical expenses, $175,552 for past wages, and $683,058 for future wages. The jury also awarded the patient's wife $2 million in loss of consortium damages, giving a total award of $9 million, the highest medical malpractice award in Wyoming's history.
In post-trial motions, the defendants asserted that the award of damages to both the plaintiff and his spouse were unreasonable and unsupported by the evidence adduced at trial. Defendants requested a remitter, or in the alternative, a new trial. The court denied the defendants' motion related to the plaintiff's award. The motion to reduce the loss of services award for the spouse was granted, and the award was reduced to $500,000, for a net award of $7.5 million.
What this means for you:This is a disability that might have been prevented with appropriate diagnosis and medical management. The first responder rescue team appropriately stabilized this patient's head and neck for transport from the accident scene to the hospital. The chief complaint on admission was neck pain. A motor vehicle accident (MVA), especially one that involves a rollover, five times no less, would warrant a thorough medical physical evaluation upon arrival at the hospital. However, the facts we are given states the physician did not examine the patient before discharge. This omission would be a deviation from the accepted standard of care. We are not provided with information regarding the ED physician's documentation of his assessment and medical decisions of this patient before discharging him home.
The emergency physician was board certified in emergency medicine and, according to the facts above, was an employee of the hospital. Being board certified is the gold standard of qualifications of physician/surgeons' credentialing and a standard to give the public confidence of physician competence. In this case, the question is what, if any, further competency evaluations of employed physicians are conducted annually. It would be of interest to know why X-rays of the neck and cervical spine were not taken, especially since the patient was complaining of neck pain. One would think it would be prudent to take such X-rays when it is known that individuals who are using their seat belts and are involved in a MVA frequently suffer injuries from the seat belt, especially those who are involved in rollover accidents. Air bags, while they save lives, also can cause injuries. Only the documentation would indicate if this neck area was evaluated and why X-rays were not taken. Was this an oversight or determined by the ED physician to be unnecessary? Why was no physical examination of the patient conducted by the ED physician? Why was a neurologist not called in to evaluate the patient before discharging, or in the alternative referred for follow-up post-discharge? Many questions that are important to know for prevention of repeat such situations remain unanswered.
This situation should be referred to the medical staff peer review for evaluation of the physician's actions or lack of action and medical care. In addition, the risk manager should conduct a root cause analysis (RCA) to determine the causes of why the sequence of events occurred in this initial ED visit. In collaboration with the departments of emergency medicine, neurology and neurosurgery, the risk manager might explore development of critical pathways or a checklist to be used when certain types of injuries present to the ED. Furthermore, a mandatory educational session on evaluation and treatment of these types of injuries should be given to all ED physicians and ED nurses. It appears the care was appropriate and timely when the patient presented to the ED four days later, although it is unclear whether the defendant ED physician was on duty on this second visit or if the patient was seen by a different ED physician. This situation also calls for a disclosure meeting and discussion with the patient and his family.
The fact that the ED physician was an employee brings into play the legal theory of respondeat superior: the employer is responsible for the acts of its employees. This theory raises the liability exposure for the hospital. From the risk management aspect, the liability insurance/risk financing program for the employed physicians and surgeons is an issue in such instances. Is coverage adequate? Are the limits of coverage per physician or shared limits? Is the physicians' coverage provided from a carrier different than that providing coverage to the hospital? If so, is there an agreement for cooperative defense? Will the hospital's excess coverage respond to the physician's primary coverage?
This patient was driving a company truck on company business when the accident occurred. The lawsuit against the hospital and its employed ED physician was filed in federal court. This could be a workers' compensation (WC) claim against the employer as well as a professional liability case against the hospital and doctor. Risk managers should be knowledgeable about WC laws in their states. In some states, WC claims are exclusive remedies, meaning the employee must choose whether to file a WC claim or a liability claim against their employer. That situation doesn't seem to apply in this case. Some states have no such rules, and other legal aspects may factor into these issues. Risk managers also should be familiar with federal claims issues. There are several factors that can be the basis for filing a claim in federal court. (This filing does not mean the claim is filed against the federal government.) While these are legal issues for the most part, again the risk manager should have a familiarity with the issues as it might influence claims management and insurance issues. Legal counsel can be helpful in sharing this information in most instances.
This case surrounds a tragic untoward outcome related to medical care, a missed or mis-diagnosis. Often these types of situations go unrecognized until the patient returns because they have deteriorated or their symptoms haven't gotten better. Readmissions to the hospital within 30 days of discharge are getting much more attention and will influence the reimbursement to hospitals. Hopefully, the tracking and analysis of these readmissions will include risk management evaluations and analysis as a part of the process and prevention or avoidance activities.
Reference
- Prager v. Campbell County Memorial Hospital, et al, United States District Court, Wyoming, 2011 WL 7664679.
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