Medical Malpractice Insights: Bad things happen. When is it negligence?

Patient dies after vomiting, aspirating during CT scan.

Facts: A 78-year-old female develops nausea, vomiting, and upper abdominal pain after eating a large lunch of hot dogs and coleslaw on July 4th. When the vomiting persists, her son takes her to the ED, where she remains nauseated but does not vomit. PMH reveals similar symptoms intermittently for the past 2 weeks, always resolving in a matter of hours. An abdominal CT is ordered, during which the patient vomits, aspirates, develops bradycardia and has a PEA cardiac arrest. She is intubated, resuscitated and admitted to the ICU. The non-contrast CT scan shows a very large, distended fluid-filled stomach above the diaphragm suggesting the presence of a gastric volvulus. On hospital day 2, a neurology consult concludes that she is has anoxic encephalopathy with an extremely poor prognosis. Because her end-of-life wishes were not to have any aggressive, life-prolonging measures, and those wishes had been clearly communicated to her family, she was removed from the ventilator and expired on hospital day 3. Believing that their mother should not have had a CT scan when she was actively vomiting, they contact an attorney about filing a medical malpractice claim. The attorney sends the case to an ED physician expert for review.
Plaintiff: Our mother was completely independent in all of her activities of daily living except driving her car. Had you not let her vomit while getting the CT scan, she would be alive today. She should have had an NG tube placed to assure that her stomach was empty before having a CT scan.

Defense: Your mother was not vomiting when evaluated in the ED. We did the CT scan to find out why she was vomiting. Almost every vomiting patient already has an empty stomach. We didn’t know that her stomach was full of fluid. Gastric volvulus is rare. We don’t place an NG tube in every patient getting an abdominal CT scan. We aren’t prophets and had no reason to put in an NG tube. Hindsight is 20/20. We are sorry she aspirated, but we were not negligent in our care.

Result: The EP reviewing the records felt that this was unfortunate but not negligent. It would be hard to prove on a “more probable than not basis” that an NG tube is the standard of care for every vomiting patient getting an abdominal CT. The attorney agreed that proving negligence would be difficult and chose not to pursue the case.

Takeaways:

• Not every bad outcome is the result of negligence.
• An abdominal x-ray could have been helpful but is used less since a CT scan is more informative.
• Not every vomiting patient needs an NG tube before getting a CT scan – which doesn’t take much more time than an abdominal x-ray and both require a supine position.
• Not inserting an NG tube is a judgment call to be made on an individual basis.
• While documenting – even post-event – why an NG tube is (or was) not needed Is a best practice, the absence of vomiting at the time seems to speak for itself.
• Plaintiff attorneys take only a very small portion (about 2%) of the cases presented to them. Of the cases they send for expert review, about half get tossed aside as defensible. The image of med mal plaintiff attorneys as “ambulance chasers” is much over-stated – until you receive notice of a lawsuit against you.

Reference: Gastric Volvulus. Hope WW. Medscape eMedicine, updated Feb 16, 2023. https://emedicine.medscape.com/article/2054271-overview