Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Delays, Missteps in Care of Child
The parents of a developmentally disabled 4-year-old boy took him to a Pennsylvania emergency department (ED) because he was vomiting and running a fever. The child had a heart rate of 180 beats/min and a respiratory rate of 40 breaths/min, but the triage nurse returned the child to the waiting room. Two hours later, another nurse recorded the child’s temperature, which revealed a fever. About 20 minutes later, a doctor saw the child and ordered acetaminophen and IV fluids, “stat.” A nurse requested an IV team, but it was not until an hour later that the fluids were finally administered. A few minutes after the line was placed, the child experienced a seizure and cardiac arrest. He died within the next hour.
The child’s adoptive mothers claimed that the hospital staff did not properly monitor the child’s vital signs, particularly in light of the child’s fever. The plaintiffs also claimed that the staff was negligent in waiting an hour to begin IV fluids when the order was “stat.” The plaintiffs also maintained that acetaminophen was never administered, despite the “stat” order.
A $1 million settlement was reached.
“Stat” means “stat,” and not an hour later. But the failures here are more than just delay. A child with these vital signs was improperly triaged back to the waiting room when he needed constant vital sign monitoring at the least. Under these circumstances, checking vital signs two hours later was negligent. The jury came to a proper decision. —JP
Sponge Found Four Years After Laparotomy
A pregnant woman in her 30s went to a Michigan ED because she was bleeding and had abdominal pain. An ob/gyn performed emergency surgery to rule out an ectopic pregnancy. During the procedure, he found an ectopic pregnancy and performed a left salpingectomy. The patient was discharged the next day but continued to have abdominal pain.
Four years later, at another hospital, the woman underwent CT because of an injury. The imaging revealed an object in her abdomen. She underwent an exploratory laparotomy; the object was removed and identified as a surgical sponge. After this surgery, the plaintiff developed an umbilical hernia and an infection.
The plaintiff claimed that the surgical sponge was left during the surgery that was performed four years earlier. She denied having undergone any other procedures between the salpingectomy and the surgery in which the sponge was removed.
The defendants claimed that the sponge that was removed was not the type that would have been used in the original procedure. The defendants also argued that the sponge counts were correct and that a retained sponge was a risk associated with the procedure.
A defense verdict was returned.
How the defendants prevailed in this case is a mystery to me. In the absence of another explanation, a sponge found in the abdomen after a surgery is malpractice. Res ipsa loquitur, a Latin phrase meaning “the thing speaks for itself,” is the appropriate legal term to describe this situation. In cases like these, the plaintiffs don’t even need an expert to prove malpractice. Sponge counts always seem to be right, even when they are wrong; otherwise, the surgeon would not have closed the abdomen. I wish someone could tell me where that sponge came from. —JP
Heart Murmur Overlooked in College Athlete
A 19-year-old man who received a college basketball scholarship needed a physical examination for medical clearance to play. The physician who conducted the exam noted a “slight systolic heart murmur” and documented it on the college’s physical exam form. This finding may be consistent with hypertrophic cardiomyopathy, a congenital heart defect associated with a transient systolic murmur and known to cause sudden death in athletes. The physician ordered an echocardiogram and signed the college medical clearance form, stating that the young man was in excellent health and did not require any physical restrictions.
Three and a half years later, while playing in a college basketball game, the young man suddenly collapsed to the floor and became unresponsive. Emergency medical personnel arrived and attempted to revive him. The young man was taken to a hospital, where further attempts to revive him proved unsuccessful. He died at age 22, four months shy of being awarded his college degree.
The plaintiffs claimed that the examining physician was negligent in signing the medical clearance form before establishing whether the student’s heart murmur indicated a life-threatening cardiac condition and for failing to note that an echocardiogram was pending. The plaintiffs also claimed that the defendant had failed to follow up on the results of the echocardiogram and that an ECG should have been performed to evaluate the murmur. The plaintiffs claimed that the student would have had a normal life span if he had been diagnosed and treated properly.
The defendant claimed that there was no negligence involved, that the decedent had not kept the appointment for an echocardiogram, and that no physician who evaluated the decedent in the intervening years had ever detected a murmur.
According to a published account, a $1.6 million verdict was returned.
A newly found murmur, whether loud or soft, deserves a complete work-up. This is particularly true when an athlete is involved. Even though an echocardiogram was ordered in this case, standard of care requires the clinician to follow up with the patient or to refer the patient to ensure adequate follow-up. —RDD
Failure to Make a Diagnosis of Colon Cancer
In October 2001, a 31-year-old man from Massachusetts went to his primary care physician’s office and was seen by a nurse practitioner. He complained of burning, cramping abdominal pain and inability to eat, which had resolved by the time of his appointment. The NP prescribed ranitidine and scheduled an appointment for a complete physical exam the following month.
During the subsequent physical exam, the patient complained of occasional abdominal pain and increased defecation. His family history included his mother’s diagnosis with colon cancer at age 54. The man also mentioned a history of chewing tobacco use and heavy coffee intake. No rectal exam was performed during this visit, nor was the patient provided with a fecal occult blood test. A colonoscopy was not ordered.
The NP changed his prescription to pantoprazole and ordered an upper GI series with contrast to rule out gastritis or ulcer; test results were negative for either. The patient’s primary care physician was given the test results, and neither the NP nor the physician initiated any discussion regarding what should be done next. The primary care physician never saw the man, nor did he review his chart at the time of this appointment.
In early December 2001, the man was seen again by the NP. He reported that his symptoms had improved on pantoprazole, but he continued to have eating problems. The NP maintained the original diagnosis of gastritis and discharged the man with instructions to call with any concerns and to return in six months. The NP did not include colon cancer in the differential diagnosis because of the patient’s age.
The man returned to the primary care physician’s office in April 2002 and was seen by the same NP. At this time, he reported worsening stomach cramps and a burning stomach. The NP switched his medication to lansoprazole while maintaining a diagnosis of gastritis. The NP made arrangements for the man to see a gastroenterologist for a possible esophagogastroduodenoscopy. The gastroenterology consult was not scheduled to take place until July.
The patient returned in May complaining of increased pain and loose stools whenever he ate cereal with milk. The NP’s revised diagnosis was gastritis and ulcer with lactose intolerance or nicotine addiction from chewing tobacco.
The gastroenterology consult was moved up, but the patient went to an ED before the scheduled visit. A work-up at the hospital, which included abdominal CT and a colonoscopy, resulted in a diagnosis of near obstruction of the right side of the colon by a stage IV tumor and metastasis to the peritoneum and lymph nodes. Immediate surgery was performed, followed by several rounds of chemotherapy, further abdominal surgery, and a cingulotomy for pain relief. The man died in December 2004.
The plaintiff claimed that the NP was negligent in failing to perform a rectal exam, conduct a fecal occult blood test, or order a colonoscopy. The plaintiff also claimed that after results from the upper GI were negative, a colonoscopy was required. The plaintiff claimed that in the fall of 2001, the colon cancer had probably been at stage IIIA with a 65% chance of survival, or stage IIIB with a 45% chance of survival, and that there was no chance of survival by the time the correct diagnosis was made.
The defendants claimed that a colonoscopy was not required because “burning” pain is more consistent with an upper GI process, and that the decedent’s history of chewing tobacco and excessive coffee consumption accounted for his eating difficulties. The primary care physician also claimed that a random review of patient files constituted adequate supervision and that there was no independent duty to review individual patient charts and sign off on them on a regular basis.
The defendants claimed that the decedent’s cancer was already at stage IV in the fall of 2001 and that nothing they could have done at that time would have changed the outcome. In addition, the defendants claimed that the decedent’s cancer was signet ring cell cancer, a very aggressive form of cancer that is nearly always fatal.
The jury found both defendants negligent. They determined that the decedent had a 45% chance of survival at the time of his first visit, and that his chance of survival was reduced to zero. The jury calculated wrongful death damages at $5,210,000, and later reduced that figure, multiplying it by 45% for a loss-of-chance award. The plaintiff contacted an economist, who estimated the loss of net income and household services at $2 million. The jury also awarded pain and suffering damages, including those associated with “dying of colon cancer.” The total verdict was $4,694,500, and the total judgment was $7,549,142.
While the initial evaluation seemed reasonable, the patient’s family history of colon cancer, added to the fact that his condition was not significantly improving, should have indicated the need for further testing. It would have been prudent to order CT and an abdominal ultrasound to get a better look at the biliary tree. The rectal exam and fecal occult blood test are mandatory, particularly when ulcer is being considered. Even in a relatively young patient with gastric symptoms, use of chewing tobacco and coffee consumption should not preclude consideration of colon cancer. —RDD