Here’s another case from Medical Malpractice Insights – Learning from Lawsuits, a monthly email newsletter for ED physicians. The goal of MMI-LFL is to improve patient safety, educate physicians and reduce the cost and stress of medical malpractice lawsuits. To opt in to the free subscriber list, click here. Stories of med mal lawsuits can save lives. If you have a story to share click here.
Chuck Pilcher MD FACEP
Editor, Medical Malpractice Insights
Two kids die hours after discharge
Is it your fault? Here’s why (not).
Case #1:
Facts: A 4-year-old child with a history of sleep apnea undergoes a routine T&A under general anesthesia at a local surgery center. The surgeon monitors the patient in the OR for 30 minutes post-op. When the child sits up and is alert, he is transferred to the PACU. There he asks for a toy and drinks apple juice. After 61 minutes of observation in the PACU, he is discharged with a score of 100% on a “readiness for release scale.” His mother notes that he appears sleepy and uncomfortable at the time but takes him home and puts him to bed. When she checks on him about 2 hours later, he is not breathing. EMS is called and resuscitation is unsuccessful. An attorney is consulted and a lawsuit is filed.
Plaintiff: The plaintiff’s expert witness filed an affidavit attesting that the child was discharged too soon, claiming that 3 hours of PACU observation was appropriate for this patient with a history of sleep apnea. He concluded that the child’s death was due to airway obstruction from swelling of his pharyngeal tissues and that post-anesthetic effects made him unable to awaken enough to breathe. He concluded that his death “could have” been prevented with longer observation. However, when later deposed, he agreed that between 1 and 3 hours were sufficient before discharging the child from PACU.
Defense: We are sorry about the patient’s unfortunate death but it was unforeseeable and his discharge was appropriate. Your own expert witness testified in his deposition that 1 hour of PACU observation was appropriate.
Result: A jury rendered a defense verdict. The plaintiff appealed and the trial verdict was over-turned. The defense appealed the case to the State Supreme court. That court over-ruled the Appeals Court. ruling that the plaintiff failed to establish that 61 minutes of PACU observation plus the 30 minutes in the OR was the direct cause of the child’s death. (See “Takeaways” below.)
Case #2:
Facts: A 7-year-old female with a history of asthma is brought to the ED for wheezing and SOB. She is treated by an emergency physician, stabilized and discharged with a prescription for a bronchodilator. She returns home and sleeps without incident for about 6 hours. She awakens with more severe wheezing and SOB. Her parents – who had not filled the prescription earlier – put her in the car and go to the pharmacy. En route the child has a cardiac arrest. Parents call 911. She is resuscitated, returned to the ED, and admitted but dies 3 days later of acute respiratory failure and anoxic brain injury. An attorney is contacted and a lawsuit is filed.
Plaintiff: Our expert witness testified that the physician’s premature discharge of the child was “likely” negligent and caused the child’s cardiac arrest and eventual death.
Defense: She was stable when she was discharged and you didn’t fill the prescription. Your expert’s opinion is unsupported by any facts; he has offered nothing suggesting what standard of care was violated by the emergency physician or what the physician did to cause the child’s cardiac arrest. Saying that a medical event is “likely” and led to the child’s death is mere guesswork, not material fact.
Result: The trial court ruled in favor of the defense, agreeing that no negligent act caused the patient’s worsening asthma and cardiac arrest. The plaintiff appealed. The Appeal Court agreed with the trial court and granted a motion for summary judgment. The case was dismissed.
Takeaways:
- There are 3 main requirements for a viable medical malpractice lawsuit: 1) damages, 2) negligence and 3) causation. There must be damages and they must be caused by negligence, i.e., substandard care
- In Case #1, one minute made a difference. The plaintiff expert waffled on the negligence issue during his deposition, agreeing that a 1 hour minimum PACU stay was within the standard of care.
- If negligence is not proven from expert testimony, the jury cannot infer causationbased on their own limited medical knowledge.
- There is more to being an “expert” than telling the court what you think shouldhave been done. Testimony regarding negligence or causation that uses such words as “likely,” or “could” without specific evidence is insufficient. Without references they are simply opinion.
- Good care and good documentation are one’s best defense. It may not prevent a lawsuit but it will (almost always) allow a defendant to prevail.
- The standard of care is not perfection. It is what the average physician with similar training and experience would do in a similar situation.
- Academic “experts” may not be as effective as an average “pit doc” who presents well to juries and judges, unless the case involves an academic setting.
