Hospital Errors

April 7, 2017

Joint Commission for Health Care Professionals Issues Alert on Preventing Medical Errors

“Leaders must commit to creating and maintaining a culture of safety.” National Patient Safety Foundation. Free From Harm: Accelerating patient safety improvement for 15 years after To Err is Human. 2015 (accessed Dec. 8, 2016). This is just a part of the Sentinel Event Alert publication of The Joint Commission Issue 57, March 1, 2017.

The core of the publication is that leadership in hospitals and medicine generally have a priority to be “accountable for effective care while protecting the safety of patients, employees, and visitors. Competent and thoughtful leaders contribute to improvements in safety and organizational culture.”

This alert acknowledges that hospitals, doctors, nurses and health care professionals must do a better job of protecting their patients from harm. The article states that “The Joint Commission’s Sentinel Event Database reveals that leadership’s failure to create an effective safety culture is a contributing factor to many types of adverse events-from wrong site surgery to delays in treatment.” Smetzer, J, et al. Shaping systems for better behavioral choices: lessons learned from a fatal medication error. Joint Commission Journal on Quality and Patient Safety. 2010; 36: 152-164.
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March 24, 2017

State Supreme Court Holds that “But For” Test is the Standard for Loss of Chance in Medical Malpractice Cases

by Robert Kreisman

This case involved a medical malpractice action for a lost chance. The parties jointly sought direct discretionary review under Washington law, RAP 2.3(b)(4), challenging two pretrial rulings:

(1) whether a court should use a “but for” or “substantial factor” standard of causation in loss of chance cases; and (2) whether evidence relating to a contributory negligence defense should be excluded based on the plaintiff’s failure to follow his doctor’s instructions.

The trial court decided that the “but for” standard applies and the contributory negligence defense was not appropriate in this case. “Traditional tort causation principles guide a loss of chance case.” Applying those established principles, under the circumstances here, the Supreme Court concluded a “but for” cause analysis was appropriate and affirmed the trial court’s ruling on that issue. The court reversed the trial court’s partial summary judgment dismissing the contributory negligence defense. The case was remanded for further proceedings.
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March 8, 2017

Federal Patient Safety and Quality Improvement Act Does Not Preempt State Law on Patients’ Right to Access Medical Records

by Robert Kreisman

In an important constitutional issue in this medical negligence and medical records case, the dispute was whether patients in the state of Florida have the right to access records under the Florida Constitution and its Amendment 7, specifically records relating to “adverse medical incidents.” These records are considered privileged and confidential under the Federal Patient Safety and Quality Improvement Act (“the Federal Act”) such that the Florida law was preempted by this federal law.

In the appeal of this case, it was concluded that adverse medical incident reports requested by patients pursuant to the Florida Amendment 7 to its constitution was not preempted by the Federal Act. The lower court in Florida held that the Federal Act did preclude access to medical records in the state of Florida, but the Florida Supreme Court reversed, holding that the Federal Act was never intended as a shield for the production of documents required by Amendment 7 and other provisions of Florida law. The court also stated that provisions of Florida law are not preempted by the Federal Act, which set up a voluntary system for hospitals to improve patient’s safety.

In this case, Southern Baptist Hospital of Florida cannot shield documents and medical records not privileged under state law or the state constitution by virtue of its unilateral decision of where to place the documents under the voluntary reporting system created by the Florida Act.
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February 11, 2017

$4.75 Million Settlement Reached for Brain Injured Baby When Hospital Failed to Staff Physician to Handle Chest Tube Placement

by Robert Kreisman

On Oct. 30, 2009, J.S. (DOB: 5/7/09) suffered a bilateral tension pneumothorax at the defendant hospital, which resulted in a cardiopulmonary arrest for 23 minutes. A bilateral tension pneumothorax is a medical emergency, and it requires immediate treatment. This 6-month-old child was a post-cardiac surgical patient who suffered from chronic lung disease and was ventilator dependent. He was at an elevated risk of suffering from pneumothoraxes.

He also was born prematurely and was diagnosed with Down Syndrome. It was anticipated before this event that J.S. would have been discharged the next day.

By 9:30 p.m. that night, J.S.’s treating physicians should have entertained a differential diagnosis that included pneumothorax (collapsed lung) based upon J.S.’s clinical presentation (ashen colored, diminished and labored breathing), as well as pH of 7.15. The standard of care was a stat chest x-ray at bedside.
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February 3, 2017

$3.72 Million Jury Verdict for Delayed Treatment of Stroke

by Robert Kreisman

Kristine Haveman, 38, collapsed at home and was brought to a nearby hospital in an unresponsive condition. The emergency room personnel examined her and ordered a CT scan. Doctors interpreted the scans as normal. That evening a neurologist diagnosed a thrombus in the left cerebral artery, which necessitated thrombolytic therapy.

Because of the delay in diagnosis and treatment, she suffered cognitive deficits resulting in problems with speech and word retrieval. She also has experienced fatigue and right-sided weakness. She had been a teacher who planned to return to work but is now unable to do so.

Haven filed a lawsuit against Dr. Kenneth Dirk, an emergency room physician and his employer, Oregon Emergency Physicians, claiming that these defendants’ negligence was the cause of an eight-hour delay in administering thrombolytic medication.The lawsuit claimed that the CT scan had been misinterpreted and that Haveman was wrongfully treated with Ativan for anxiety and emotional problems before the neurologist’s stroke diagnosis.
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January 31, 2017

$1.75 Million Jury Verdict for Death of Patient from Septic Shock Following Laparoscopic Surgery

by Robert Kreisman

Deborah Larkin, 42, underwent laparoscopic surgery. Over the next two days she complained of severe pain even with the use of medication. Larkin also developed tachycardia, low sodium levels, hypotension and an abnormally high white blood cell count.

A kidney physician, a nephrologist, diagnosed sepsis prompting the surgeon to order a swallow study which did not show any internal leakage. However, the laboratory results did show decreased CO2 and increased lactate levels.

Larkin’s conditioned worsened. She was transferred to intensive care the next day in respiratory distress with kidney failure. The surgeon performed exploratory surgery, which revealed that a 4-millimeter gastric leak was the cause of Larkin’s septic shock.
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January 2, 2017

US Court of Appeals Reverses and Sends Case Back for Trial on the Issue of Expert Medical Testimony

by Robert Kreisman

When Chelsea Weekley was about five months old, she suffered a skull fracture. The fracture expanded over time and a cyst was formed on her skull. At age 17, Chelsea was hit on the head and suffered a loss of consciousness, blurred vision and dizziness.

After CT and MRI scans confirmed the extent of the skull fracture and cyst, Chelsea underwent a canaloplasty surgery to repair the fracture and the area where the cyst had formed. The surgery was done at Cardinal Glennon Children’s Hospital in St. Louis by the defendant Dr. Ann Flannery, a neurosurgeon, and by Dr. Raghuram Sampath, a neurosurgical resident.

Chelsea was discharged a day after the surgery and was found dead in her bed just three days later. An autopsy was completed, which found that Chelsea had died from a seizure brought about by the surgical damage.
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December 5, 2016

$2.28 Million Jury Verdict for Overuse of Contrast Dye

by Robert Kreisman

Robert Firkins was 67 and suffered from chronic renal disease and cardiac issues. Before having orthopedic surgery, he underwent an angiogram done by an interventional cardiologist, the defendant, Dr. Scott Harris. Dr. Harris, who had been instructed by Firkins’ treating nephrologist to use a minimum amount of contrast dye, used 160 milliliters of dye during the angiogram, which lasted 94 minutes.

After the procedure, Firkins developed atheroemboli, resulting in ischemia in his right lower leg, significantly increased creatinine levels and worsening kidney disease that now has necessitated dialysis three times each week. In addition, Firkins required a below-the-knee amputation a month after the angiogram.

Firkins and his wife sued Dr. Harris, claiming that he used an excessive amount of contrast dye and negligently performed the angiogram. The Firkins family claimed that the defendant doctor should have kept the dye under 100 milliliters and finish the procedure within 35 minutes. The lawsuit did not claim lost income.
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December 1, 2016

$4.58 Million Jury Verdict in Medical Malpractice Death Case

by Robert Kreisman

Nakeyia McMichael, a 33-year-old nurse, was hospitalized for treatment for a cerebral edema. Just 18 months later she returned to the hospital’s emergency room complaining of head pain, nausea and vomiting.

Two hospital emergency department residents and the defendant, Dr. John Pakiela, an osteopath employed by General Emergency Medical Specialists, diagnosed her with a migraine headache and discharged her with medicine. The very next day, she became unresponsive and died. The cause was determined to be brain herniation resulting from the cerebral edema or brain swell. McMichael was survived by her husband and three minor children.

The McMichael family sued Dr. Pakiela and his employer alleging that he failed to refer her to a neurologist for further workup. The McMichael family claimed that in light of her medical history, Dr. Pakiela should have reviewed her medical records before discharging her and should have considered cerebral edema as a possible cause of her renewed symptoms. The doctor should have ruled out the most deadly and dangerous of illnesses or conditions.

November 28, 2016

Jury Awards $44.1 Million Verdict in Failure to Continue Blood Thinner Monitoring

by Robert Kreisman

Andrea Tate was 57 when she underwent surgery to remove a noncancerous tumor at the Hospital of the University of Pennsylvania. After the surgery, the staff at the hospital administered Heparin to prevent blood clots. Tate’s coagulation rate was measured using an activated partial thromboplastin time (APTT) test.

Over the next six days, four consecutive APTT tests revealed that Tate’s coagulation was moving from the low end of the normal range to the high end of normal. As a result, the hospital staff stopped doing the test.

Days later, Tate suffered a catastrophic brain bleed. Previously a financial services project manager earning $100,000 a year, she is now paralyzed in her right leg and on her left side. She is mostly confined to bed and requires 24-hour care provided by her husband, who has left his job to take care of his wife.
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