Representative case summaries (some names have been changed to protect confidentiality):
Cora’s daughter just wanted some answers. Cora had been admitted to the nursing home because she needed help with daily activities that her family was unable to provide, but no one thought she had a life-threatening condition. The nursing home had been instructed that she was a full code patient who wanted to be resuscitated if something happened to her. So her daughter was surprised when she received a call from the facility telling her that Cora had been taken to the hospital, and was beyond surprised when she got to the hospital and found that her mother was unresponsive in the intensive care unit. No one at the hospital was able (or willing) to tell Cora’s daughter what had happened, so she came to us.
We reject far more cases than we file, and as we began our investigation we thought that this probably would be a case that did not get filed. We warned Cora’s daughter that we would look into her mother’s death, but it was likely we would find that her mother died of natural causes from the underlying medical problems that had required her to be placed in the nursing home in the first place. That was okay with her; it was answers she wanted, not necessarily a lawsuit.
Our suspicions were raised when we tried to get Cora’s medical records from the facility. Our initial request for records was ignored. That request was followed by six months of letters, telephone calls, evasion, changing excuses, and, finally, a lawsuit, not for medical malpractice, but asking the court for an order requiring the facility to produce the records to us. Only after suit was filed were the records produced.
Once we received the records, answers to Cora’s daughter’s questions became more clear. Early in the morning, Cora’s nurse had given her medication for abdominal pain. When the nurse returned to check on Cora ten minutes later, she found that Cora was in cardiac arrest. Despite Cora’s status as a full code patient, the facility made no serious effort to resuscitate Cora. Instead, they waited almost an hour to call for an ambulance, and when the paramedics arrived they found the nursing staff giving only what was described as light CPR. The paramedics went to work and were quickly able to restore Cora’s heart-rate, but too much time had passed: Cora had suffered severe brain damage. After 36 hours of effort by the hospital staff, life support was withdrawn and Cora died.
Our investigation did not end with obtaining Cora’s medical records. We also requested records from the state regarding State inspections of the nursing home. Those records showed that three months before Cora’s cardiac arrest was mishandled, the facility was cited for failing to have available the equipment to conduct emergency care for full code residents and for failing to properly resuscitate a patient. The facility promised correct the deficiencies, but approximately four months after Cora’s cardiac arrest the facility was cited again, this time for failing to have staff available who were trained and certified in CPR and for failing to have a properly stocked crash cart. After showing the results of our investigation to the defense in mediation, a settlement was reached.Powered by Hackadelic Sliding Notes 1.6.5
When Naomi was admitted to the nursing home, the staff described her as nurturing, caring, good-natured, and sensitive. That description could have described her family, too. Her husband visited daily, helping her with her meals and keeping her company throughout the day. Her children came often, too, asking questions and doing what they could to help. They would have cared for her at home, but after she broke her hip and was diagnosed with Alzheimer’s they felt they could not give her the care she needed.
Naomi had always taken pride in her appearance, so the family hired a private aide to help with personal grooming and arrange for more baths than the two per week provided by the nursing home. One day in June, that aide noticed a decubitus ulcer, or bedsore, on Naomi’s bottom and pointed it out to the nursing home staff. No one from the nursing home made any entries in Naomi’s chart about this sore or gave any treatment for it. A week later, Naomi’s private aide again called the sore to the staff’s attention. When treatment finally began, it was too little too late. The sore continued to get worse, eventually developing a foul odor that could be smelled all the way from the door to Naomi’s room. When Naomi died in September, her death certificate listed the cause of death as sepsis due to decubitus ulcer.
Decubitis ulcers, also known as pressure ulcers or bedsores, develop when patients who are unable to care for themselves are not given proper attention. If a resident is given proper care, pressure ulcers should not develop and certainly should not progress to the point that they are life threatening.
Patients who are bed or wheelchair bound, have difficulty turning themselves, are incontinent, or have poor nutrition are at higher risk for developing pressure ulcers. Naomi’s nursing home knew and documented that she was a patient at high risk who required special attention. We believed that Naomi died because her nursing home did not hire enough staff to give proper care. Depositions showed that the facility did not base its staffing on resident needs; instead, it assigned only enough staff to meet the minimum fire code requirements. Staff who tried to care for patients complained that they were being given too many residents to care for and were asked to do more than was humanly possible. The case settled after our depositions.Powered by Hackadelic Sliding Notes 1.6.5
Carl could be a difficult patient. Alzheimer’s had affected his mind and he sometimes became agitated when he wasn’t happy. It didn’t make him an easy patient to care for, but if he hadn’t needed care he would have still been living with his wife at home, not in a nursing home.
Carl spent most of his time in a specialty wheel chair, secured by a seat belt. He didn’t particularly like it, and staff knew that he had tried many times to try to get out of the chair. They knew that Carl, like any restrained patient, needed to be observed. Instead, the afternoon shift one day left Carl strapped in his chair in his room with the door closed. When the new shift came on duty, they found Carl in his wheelchair, blue, down in the chair, with the belt taut across his neck. He was dead.
Instead of telling Carl’s family what had happened, staff was instructed to move Carl’s body from his chair to his bed. The family were told he had died of natural causes. Fortunately, a nursing home employee who didn’t think what was happening was right made a hotline report to the division of aging. Their investigation led to discipline against the nursing home administrator.
An autopsy report stated that Carl died of natural causes, and the nursing home based its defense on that report. However, we hired an expert pathologist who found that he actually died from positional asphyxia as a result of his attempt to slide underneath the seat belt while he was left unattended in his room. We deposed the pathologist who performed the autopsy, who had not been told about the circumstances of Carl’s death before he prepared his report. He agreed at his deposition that if the information we learned about the nursing home’s clean-up of the scene was true, Carl’s death was consistent with positional asphyxia. The case settled shortly before we were to produce our expert pathologist for deposition.Powered by Hackadelic Sliding Notes 1.6.5
Edna was 79 when she was admitted to the hospital. Her cardiac catheterization procedure went well, and her doctor thought she was well on her way toward discharge and a healthy old age. She rang her call light and asked the nursing staff for help getting to the restroom—although she was doing well, she was still connected by her IV lines to the tree that held her IV fluids, and she needed help. A nurse responded, but instead of helping Edna she told her to walk to the bathroom. Edna fell and broke her hip—instead of going home the next day, she spent the rest of her life in the hospital before dying three months later.
Edna’s medications had been increased the night before she fell—in fact, she had been given more of one of her medications than was permitted by her doctor’s orders. The nurse taking care of her during the night, who had given her that medication, also noticed that she seemed confused. We thought this was a strong case of negligence—a fragile older woman on increased meds should get help from the hospital staff when she asks for it. We also believed Edna’s death was caused by her fall. However, we recognized the fact that a jury might believe that, given the fact that Edna lived for three months after she fell her death was not caused by her fall. To address that risk, we filed alternative claims for wrongful death and for damages caused by the fall if the jury did not lead to death. Those claims were tried to a jury.
Juries return verdicts guided by instructions given by the court. When the time came to instruct the jury, the judge hearing the case held that the jury should be instructed that they could find for Edna’s husband on his claim for her medical bills if the hospital’s negligence caused or contributed to cause Edna’s injury. We believed this was the correct standard for a jury to follow. However, on the claim for death, the judge instructed the jury that they could return a verdict for Edna’s husband only if they found that the hospital’s negligence directly caused her death. Given that instruction, it was no surprise when the jury found that Edna’s husband was entitled to $100,000 for Elsie’s medical expenses but nothing for her death. We didn’t think the court’s instruction was right, so we took the case to the court of appeals, which agreed with us. The trial court’s refusal to give the jury instruction we had requested was reversed and the case was ordered back for a new trial. Before that could happen, however, the defendant agreed to a settlement.Powered by Hackadelic Sliding Notes 1.6.5
Shaun weighed less than six pounds when he was born, six weeks early. He was admitted to the neonatal intensive care unit, where he spent the first few days of his life. He was brought back to the hospital a week later after his mother noticed him coughing and having trouble breathing. He was diagnosed with respiratory syncytial virus, or RSV, and treatment was begun, but the treatment failed. Shaun died when he was 46 days old.
RSV is a common illness. Medical literature at the time Shaun was born attributed 90,000 pediatric hospitalizations and 4,500 deaths a year to RSV. Premature babies were known to be at high risk for complications from RSV, but a new drug called synagis could be given to preemies to prevent that. Synagis was approved by the FDA in June of 1998, six months before Shaun was born. The American Academy of Pediatrics recognized the importance of this development, and worked hard to make sure pediatricians knew about it. An article was published in the Academy’s September 1998 Journal, bulletins were faxed to pediatricians in October, and a policy statement outlining criteria for using the medicine was published in November. Shaun met these criteria, but he fell through the cracks and was not given synagis. Cox Medical Center, where he was born, put policies in place that required synagis be given to babies like Shaun, but not until it was too late for Shaun.
A Greene County jury agreed that Synagis should have been given to Shaun and returned a verdict of $180,000.Powered by Hackadelic Sliding Notes 1.6.5
Diane and Tom were uninsured when Diane became pregnant. They knew they needed a good doctor—Diane was diabetic (which increases the risk of pregnancy for both baby and mom) and had high blood pressure (ditto), and in two earlier pregnancies their children were delivered early by c-section. They found a doctor who claimed he had extensive training in high risk obstetrics. Diane’s doctor knew from the time he first saw her that she was a high risk patient, and that she and her unborn baby needed additional attention because of the risk factors in her pregnancy.
Instead of the extra care high-risk moms and their babies need, the doctor gave Diane and her baby hardly any care at all. He ordered an ultrasound, but never even looked at it. He never ordered nonstress testing for the baby, even though he admitted the standard of care required it. Worst of all, twelve days before their baby was to be delivered by c-section, at the point in a high-risk pregnancy where most doctors would have the patient in twice a week to make sure that the baby was alright, Diane’s doctor sent a letter telling her that if she didn’t pay his fee before delivery she would need to find another doctor. He would not see her or deliver if she did not pay in advance.
Tom worked in construction and money was tight. He told the doctor’s staff that he would pay them as his customers paid him, but he could not come up with the money the doctor demanded in the short time left before the baby was to be delivered. Obstetricians willing to accept a high risk uninsured patient days before delivery are scarce, so it took some time for Diane and Tom to find another doctor. On their first visit to their new obstetrician, the doctor could not find a heartbeat. A c-section was performed to deliver their dead child.
When we filed suit, the doctor tried to blame his lack of care on the parents. For example, at his deposition he repeatedly claimed that they had refused to get an ultrasound that he wanted because of the expense involved–until we showed him the ultrasound report we got from the hospital. Diane and Tom had tried to get the care their baby needed—he just hadn’t paid attention. His claim of “extensive training” in high risk obstetrics turned out not to be true, as he admitted at his deposition. When asked why he put this on his resume, he answered, “To sell myself.” It looked to us like he was more interested in marketing a practice than giving good care. The case settled after the doctor’s deposition without the need for us even to produce our expert witness.Powered by Hackadelic Sliding Notes 1.6.5
Mabel was a vital octogenarian who enjoyed living in her assisted living apartment, where she was able to maintain independence but still have help with her medications. One of those medications was Coumadin, a blood thinner prescribed for her by her cardiologists to prevent the formation of clots that could be dangerous for her. When properly monitored, Coumadin is a life-saving drug. If not properly monitored, however, it can lead to life-threatening bleeding.
Because of the increased risk of bleeding when a patient is on Coumadin, the drug often is stopped when patients need surgery, so when Mabel was admitted to the hospital for elective surgery her doctors took her off the medication. Coumadin was restarted after surgery but, unfortunately, her surgeon did not order any monitoring of her blood work. Her assisted living nurses gave her Coumadin daily as ordered, but neither they, nor her cardiologist, nor her primary care doctor noticed that no lab work had been ordered to monitor her blood until for two weeks, and none of them picked up a phone to see if someone else was keeping an eye out for Mabel. When her lab work finally was resumed, test results were almost six times the therapeutic level. Steps were taken to reverse the Coumadin, but it was too little too late—she already had begun the internal bleeding that killed her. At deposition, all of the health care providers agreed that someone should have been monitoring Mabel’s Coumadin, but no one had a good explanation for why no one had been. The case settled after the defendants’ depositions without the need to produce expert witnesses.Powered by Hackadelic Sliding Notes 1.6.5
After an abnormal blood test, Sara’s family practice doctor recommended a thyroid scan. The scan showed the possibility of cancer. Sara was referred to an ear, nose, and throat specialist who performed a needle biopsy that was inconclusive. The pathologist recommended additional evaluation, with excision of the nodule if clinically indicated. Instead, Sara’s ENT placed her on synthroid, with a plan to perform surgery if the thyroid did not get smaller. It did not shrink, but her ENT continued to order synthroid rather than operating, sometimes refilling prescriptions by phone without even seeing her. Over a year passed before another physician finally ordered surgery. Sara had to undergo a radical neck dissection, and learned that cancer in her thyroid had spread to other parts of her body.
Why had her ENT ordered refills of her medication without even seeing her in his office rather than performing surgery? In investigating Sara’s claim, we learned that her doctor had suffered an injury of his own shortly before he first saw Sara. We obtained a copy of the deposition he gave in the lawsuit he filed to recover for his injuries. He testified that he was “malpractice waiting to happen.” Sara’s case settled after the doctor’s deposition.Powered by Hackadelic Sliding Notes 1.6.5
Frank’s cardiologist scheduled him for a cardiac catheterization procedure, and ordered a chest x-ray as part of the pre-testing for that procedure. The radiologist interpreting the chest x-ray reported that there was an area of concern on the x-ray that should be evaluated with CT to rule out a mass. The radiologist dictated his report, but did not call the cardiologist. The cardiologist did not review the chest x-ray or the radiology report. He performed the cardiac catheterization procedure and sent Frank on his way.
A year later, Frank became disoriented and confused. He came back to the hospital, and it was learned that he had lung cancer that had spread to his brain. He died of his cancer. Would Frank have lived if he had been diagnosed a year earlier? No one really knows, but he would at least have had a fighting chance. We filed a claim for lost chance of survival. At his deposition, the cardiologist admitted that the standard of care required him to review the radiology report. The case settled, but unfortunately Frank died before the settlement was reached.Powered by Hackadelic Sliding Notes 1.6.5
Like many middle-aged men, William had his PSA measured, a screening test for prostate cancer. William’s PSA was high, but he was reassured that there are many possible causes for this. After a repeat PSA was also high, his doctors suggested he have a biopsy to see if his elevated PSA was caused by prostate cancer. His urologist performed the biopsy and sent the sample off to the lab for evaluation. He reassured William that everything looked good and he didn’t think there was any reason to be concerned. Five days later the lab reported back that the biopsy showed cancer.
William’s doctor had told him that everything looked okay, and William assumed that he would be called if something changed that. Unfortunately for William, his doctor never looked at that report. Instead, it was filed in William’s chart and no call was made. Almost a year later William called his urologist’s office and for the first time was told that he had cancer. Unfortunately, in that year his cancer progressed from a readily treatable condition confined within the prostate gland to more extensive disease beyond the prostate.
Discovery we conducted in the case proved that every doctor in the medical group where William was seen except William’s doctor reviewed and initiated biopsy results the day they were received from the lab. William’s doctor, however, required staff to put biopsy results directly in the patient’s chart before they were reviewed. The doctor would review the results only if the patient called to ask about them. The patient was not told about this practice, and there was no procedure in place to check to see if a patient ever called. The expert urologist we retained to review William’s care concluded that the whole system of having a doctor order tests that he would not review until a patient called was malpractice. The case settled after the deposition of our expert.Powered by Hackadelic Sliding Notes 1.6.5
Rick needed to have some teeth pulled. It was no big deal, something that could be taken care of in the oral surgeon’s office. He would be given what’s called “conscious sedation”: an IV would be started and drugs administered to reduce his level of consciousness to minimize pain, while still leaving him alert enough to answer questions.
Although his medical records called the level of anesthesia Rick received IV sedation, his billing records called it general anesthesia, a much deeper level of unconsciousness. At his deposition, Rick’s doctor showed a lack of understanding of the difference between conscious sedation and deep sedation. Even worse, Rick’s doctor let his dental assistant decide how much anesthetic agent to give. This young woman was not given any training on the difference in deep sedation and conscious sedation. In fact, although one of the purposes of conscious sedation is to allow a patient to respond to questions, she believed that a patient was too “light” if they talked, moved, or even swallowed. We believed that this lack of understanding was a fatal mistake. During his dental procedure Rick turned blue and quit breathing. He died in the dental chair. The case settled at mediation after our expert explained the errors in the care Rick was given.Powered by Hackadelic Sliding Notes 1.6.5
Sometimes even good doctors are negligent. Just as a good driver can have a bad day where he is distracted and runs a red light, a good doctor can have a bad day and run a medical red light. But when the same problems keep happening over and over, often there is more to it than just a bad day. Whether due to inadequate training, inattention, alcohol or substance abuse, or a simple lack of ability, a few doctors just are not very good at what they do.
In a perfect world, hospitals would identify those doctors through the peer review process and take steps to improve them or remove them before they hurt other patients, but the world we live in is far from perfect. When hospitals fail to live up to their obligation to police the profession, lawsuits may be necessary to get their attention. We filed eleven lawsuits against one surgeon (who practiced in the Kansas City metropolitan area for only a little over two years) because of the problems he caused his patients, and eventually we included the hospital that allowed him to practice in the suits because we believed it had not taken the steps hospitals are supposed to take to protect their patients. All of the cases were settled by the defendants.Powered by Hackadelic Sliding Notes 1.6.5
Martha was 64 when she was admitted to the hospital for surgery on an abdominal aortic aneuryism, her gall bladder, and her kidney. Her children wondered about the wisdom of performing three different surgeries at the same time, but that was what her doctors recommended and Martha was not someone to question what her doctor told her. After the surgery, Martha was unable to move her legs. She was returned to surgery, but continued to decline. Five days later, Martha died.
This wasn’t a case we were sure we wanted to take. Martha had a lot of problems, and sometimes people with these kinds of problems just don’t have good outcomes. After some investigation, however, we learned things that caused us concern. Aneurysms potentially can be a life-threatening condition, but in Martha’s case her aneurysm was small and had not caused her any symptoms. It was the kind of problem most doctors would watch rather than subjecting their patient to the risks of the surgery. More concerning, there didn’t seem to have been any real attempt to evaluate Martha, either before her surgery or after.
At the deposition of her vascular surgeon, he told us that during business hours of the week Martha was in the hospital he would have been either in the hospital or doing medical work at his office. We didn’t think this was true, because as part of our investigation we had checked court records, and found that a hearing occurred that same week on claims that he had abused his children. We confronted him with the evidence our investigation had uncovered. The case settled after the deposition.Powered by Hackadelic Sliding Notes 1.6.5
Lori had heartburn. Over-the-counter medicines and prescription medicine helped, but she still had heartburn. Her doctor referred her to a surgeon, who told her he could fix her problem with a surgical procedure called a laparoscopic Nissen fundoplication. After a short stay in the hospital she would be as good as new.
Things did not go as planned. Lori’s doctor noticed that he was encountering more bleeding than expected, but did not immediately understand why. By the time he realized that he had cut the aorta, the body’s largest artery, nothing could be done for Lori. Despite massive blood transfusions she died on the operating table. Lori’s children asked us to find out what had happened. Our expert told us that Lori’s doctor had violated the cardinal rule of this surgery—he cut before he identified the most important anatomical structure in the area. The doctor settled after we took his deposition.Powered by Hackadelic Sliding Notes 1.6.5
Wayne was admitted to the hospital with a sudden, unexpected problem: he had gone to the bathroom, and had a large amount of rectal bleeding. Preliminary testing showed no definitive source for the bleeding, so his doctors recommended exploratory surgery. Wayne’s belly began to swell after the operation. X-rays suggested that Wayne had a bowel obstruction, so it was decided to operate again. A nasogastric tube had been placed through Wayne’s nose into his stomach to remove stomach contents and reduce the pressure. The tube got pulled out in the early morning hours before his second surgery, and in preparation for the surgery the nursing staff on the floor failed to replace it. Wayne’s belly was as tight as a basketball from the fluid in his stomach, but the surgeon and anesthesia team also neglected to see that a nasogastric tube was in place. Under these circumstances, it should not have been a surprise when Wayne vomited as anesthesia was beginning. After he vomited a nasogastric tube finally was replaced, and over five liters of fluid was drained from his stomach.
When a patient is intubated for anesthesia, powerful drugs are given that essentially paralyze them. While they are under the influence of these drugs, they do not have the ability to protect their airway—if fluids go into their mouth, they are likely to go down into the unprotected lungs. Anesthesiologists are taught techniques to reduce the chance of this happening. One of those techniques is the administration of cricoid pressure, in which the anesthesiologist applies pressure on cartilage in the patient’s neck to essentially squeeze the esophagus shut, so that stomach contents cannot be regurgitated.
Everyone agreed that it was necessary for someone to apply cricoid pressure for Wayne. No one agreed, however, on who had actually done it. The anesthesiologist testified that he did it while the nurse anesthetist testified that he did. Despite the fact that it was clear that this would be a difficult intubation, and that it would be important to get an endotracheal tube placed quickly so that Wayne could breathe, a nurse anesthetist student was told to try to place the tube. The anesthesiologist and CRNA both testified that he did so; when we tracked down the student, however, he testified that he tried but was unable to do so.
A missing NG tube, lack of clear responsibility to protect the airway, an inexperienced student attempting to intubate—any one of these problems might have been overcome. Combined, they led to a tragedy. Wayne died shortly after his surgery was completed.Powered by Hackadelic Sliding Notes 1.6.5
Carol was an active professional woman whose job required international travel. She found herself slowed down by an embarrassing problem: she had hemorrhoids. It was no laughing matter. They hurt, and what was worse they bled and limited her activities. She needed to get something done. She went to see a surgeon, who told her about a new process for operating on hemorrhoids that was quick, safe, and relatively painless. It would, she was assured, have her up and on her feet in no time.
He did not tell her that his training in this new procedure consisted of attending a video seminar where he was given a model to practice on and looking over the shoulders of other surgeons while they performed the procedure a couple of times. He did not tell her that he had failed his board certification exams twice before finally passing them. Carol’s doctor had never performed this new procedure while someone with more experience was instructing him on how to do it. He did not even know that the company that manufactured the equipment warned that injury to the rectum was a possible complication if the procedure was not performed correctly.
By the time Carol’s doctor realized something had gone wrong, Carol had a problem far worse than hemorrhoids. She was forced to undergo multiple surgeries to repair the damage that was done when her surgeon stapled her rectum shut. After the two national colorectal experts we retained to review Carol’s records testified the defendant settled the case.
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