Premature Infant Erroneously Deemed Nonviable
The plaintiff mother was six months pregnant with her first child when she miscarried at her home in Massachusetts, and an ambulance was called. The EMTs helped the woman to a stretcher, then went to retrieve the fetus from the bathroom floor. The infant was seen moving its head, and the EMTs summoned ALS to the scene. The infant was placed in a small box. The ALS personnel visually assessed the infant and determined that it was “nonviable.” No fetal heart check was conducted in the field.
The mother and fetus arrived at the hospital 17 minutes after the ambulance was called. At the hospital, a nurse noticed that the fetus was warm and had a heartbeat. The infant was taken to the special care nursery and placed under a warmer, where resuscitation efforts began. The infant was later transported to another hospital’s neonatal ICU for further care and treatment but at six weeks of age died of brain damage due to oxygen deprivation.
The plaintiff claimed that the EMTs should have provided evaluation and treatment for the infant and that they lacked proper training to determine the viability of a newborn. The plaintiff also claimed that placing the infant inside a plastic bag inside a box with a lid further deprived it of oxygen.
A settlement of $1 million was reached.
This case illustrates the perils of allowing prehospital personnel excessive latitude in determining when resuscitation efforts should terminate. Unless death is obvious, vigorous resuscitation and expeditious transport must be undertaken.
In most jurisdictions, “obvious” death requires clear evidence of death (eg, rigor mortis) or a clearly nonsurvivable injury (eg, decapitation, fully transected trunk). In cases where death is not evident under regional Emergency Medical Services guidelines, resuscitation efforts must be full and robust, continuing until medical control orders them to cease.
Medical control refers to medical direction given to responding prehospital personnel; it may be “online” or “offline.” Online control refers to direct clinician-to–prehospital provider direction via radio or telecommunication means, whereas offline control refers to indirect guidance via preestablished protocols and guidelines. In cases in which responding personnel are uncertain whether the indicators of death are met under existing offline protocols, resuscitation efforts should begin and proceed until online medical control orders those efforts terminated.
Jurors will expect an ambulance to move swiftly to the scene, with EMS personnel providing prompt stabilization and rapid transport to the hospital. Jurors will view premature decisions to “count a patient out” harshly.
To be fair, transporting a patient with little chance for survival presents a burden to the immediate community. While transporting such a patient (and for some time immediately following arrival at the hospital), the ambulance is out of service and unavailable to other patients requiring transport who stand a better chance of survival. However, jurors will expect a patient with even a slim chance for survival to be given that chance.
Those who are incontrovertibly deceased should not be transported via ambulance. —DML
Aortic Dissection Misdiagnosed as Abdominal Pain and Hypertension
A 35-year-old Illinois man experienced sudden-onset severe abdominal pain at work. An ambulance was called. His co-workers described him as crying and writhing on the floor, with difficulty breathing and profuse sweating. The ambulance report described abdominal pain and cold, pale, diaphoretic skin but normal vital signs.
At the hospital emergency department (ED), the triage nurse noted mid-abdominal pain that felt like cramping, normal vital signs, and skin that was pink, warm, and dry. The defendant emergency physician, Dr. M., noted that the patient described moderate abdominal pain in the epigastric area. Dr. M.’s initial impression was gastritis or pancreatitis, but he ordered a cardiac work-up to rule out acute coronary syndrome. Cardiac enzyme levels were normal, but ECG results were abnormal and consistent with cardiac ischemia or hypertension. A chest x-ray showed an enlarged heart, which was consistent with the patient’s known history of hypertension.
The man’s co-workers, who visited him in a hallway in the ED, stated that the department was very busy. They stated that the patient was complaining of chest pain and spitting up blood, and that hospital personnel were paying him little attention.
The patient was given a “GI cocktail,” after which he vomited and reported feeling better. Dr. M. reevaluated him, noted that the patient reported no more abdominal pain, and discharged him with a diagnosis of abdominal pain and hypertension.
At discharge, the patient was instructed to follow up with a health care provider the following day for his hypertension and enlarged heart. According to a nurse’s note, the patient ambulated without difficulty at the time of discharge. The friend who picked him up, however, claimed that he was still in significant pain and had trouble walking to her car.
Six days later, the man was found dead at home. An autopsy revealed aortic dissection as the cause of death.
Plaintiff for the decedent claimed that Dr. M. failed to perform a proper history and physical examination, which would have revealed the signs and symptoms described by the decedent’s co-workers. It was undisputed that the co-workers’ description of the decedent’s condition at work was suggestive of aortic dissection. The plaintiff claimed that CT should have been ordered, with results indicating surgery; this would likely have prevented the man’s death. The plaintiff also claimed that the decedent’s abnormal ECG results should have prompted hospital admission and an inpatient cardiac work-up.
The defendant claimed that the decedent never reported the severe and dramatic symptoms described by his co-workers, to the paramedics, the triage nurse, or the emergency physician. Dr. M. further maintained that a proper history and physical examination were performed, that proper studies were conducted and appropriate medications provided, and that the decedent was properly discharged in an improved condition.
The defendant hospital settled for $75,000 before trial. According to a published account, a defense verdict was returned, although an earlier trial in the case had ended in a $3.7 million verdict.
A history of abdominal pain and hypertension makes aortic dissection a diagnostic possibility, but it is unclear whether aortic dissection was considered as part of the differential diagnosis. The sudden onset and severe nature of the pain were clues, but controversy arose over whether this presentation was conveyed to the prehospital responders, the triage nurse, and/or the emergency physician.
This case was apparently retried following a substantial $3.7 million verdict, with the second result being quite different: a $75,000 settlement from the hospital and a defense verdict. It is unclear why the case was retried.
There are a few noteworthy points in this case. First, there was a disconnect between the description of the patient’s presentation given by his co-workers and the content of the EMS, nursing, and physician notes. The co-workers described sudden onset of severe pain, resulting in the patient crying and writhing on the floor; the triage nurse characterized the pain as abdominal “cramping” in quality, with the physician noting the patient’s description as “moderate” in intensity—a substantial difference. Whenever possible, attempt to elicit history from different sources and document each source of the information. In this case, more than likely the patient’s original presentation was not clearly communicated by the patient or by his co-workers to any of the treatment providers—the EMTs, the triage nurses and other hospital personnel, and the emergency physician.
Second, use of a “GI cocktail” as a diagnostic test to distinguish between gastrointestinal (GI) and non-GI causes of abdominal or chest pain can be problematic. The composition of the GI cocktail is generally antacid, viscous lidocaine, and an anticholinergic agent. Here, after consuming the GI cocktail, the patient said he felt better—perhaps falsely suggesting a gastrointestinal source of pain. While the use of a GI cocktail may provide symptomatic relief in certain circumstances, there is inadequate evidence to support making diagnostic decisions based on a patient’s response to it. So don’t.
Third, EDs are often overcrowded and chaotically busy. Such conditions can result in an overburdened staff, with clinicians feeling they did the best they could in an extremely difficult environment. Some clinicians have remarked they would like the jury to see “how the ED was that day”—to explain the pressure, the pace, and the other dire and pressing patient needs. But the malpractice plaintiff wants the jury to see “how the ED was that day,” too—to support the conclusion that the patient was not given the proper time, attention, and care that his or her condition warranted. Here, the plaintiff’s co-workers were willing to testify that the patient was “kept in the hallway,” that the department was “very busy,” and the personnel did not “pay much attention” to the patient—all to support the conclusion that the care was substandard.
While I can’t offer any breakthrough suggestions to cure the problem of ED overcrowding, I can recommend that clinicians do their best to make sure patients roomed in unconventional locations (such as the hallway) receive full attention and requisite concern so that they do not feel (or are not perceived as) neglected. A patient who has been placed in the hallway is still a patient in the hospital under your care. It goes without saying that a clinician should never form diagnostic or treatment impressions by virtue of where a patient is being examined: When a patient in the hallway is discovered to be acutely ill, immediate steps must be taken to re-room that patient. —DML
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.