Health and Law
Submitted by Cindy Huffer, MSN, RNP
Malpractice Case Analysis
This legal case study involves a young woman who presented ambulatory to the emergency room with a gunshot wound to the head. In September 2007, the twenty-two year old plaintiff was shot in the right temple with an air pellet gun and arrived at the emergency department, awake and alert, via private vehicle. Because no beds were available, the patient sat in a chair while being monitored by the triage nurse.
One hour after arrival, a skull xray was performed. At this time, the technician noted the patient appeared lethargic. Fifteen minutes later, the technician reported to the physician that the patient had a bullet in her brain. The physician ordered a CT scan and began the transfer process to a higher level of care for neurosurgical referral. Now the patient appeared stuporous and was noted to have a seven millimeter puncture wound in the right temple with swelling above the right eye. Two hours after arrival, the plaintiff required intubation and mechanical ventilation. Because the CT technician had to be called into this tertiary hospital, the scan was not performed until three and one-half hours after the patient’s arrival. The patient left by air ambulance for the accepting trauma hospital a total of four and one half hours from initial presentation.
Upon arrival at the receiving hospital, the patient’s right pupil was fixed and dilated to three millimeters and the left pupil was pinpoint size. The patient was examined by the neurosurgeon, underwent repeat CT scan, and was taken to the operating room within two hours of this arrival. The patient was found to have a bleeding cortical blood vessel, severe brain swelling, and a mid-brain herniation. The patient remained in a vegetative state and was ultimately awarded twelve million dollars as compensation.
The defendants based their case on the fact that she did not appear emergent and thus the reason for their lack of urgency.
Type of Law
This case offers demonstration of tort law. Tort law, as described by Pozgar (2007), is a civil wrong other than a breach of contract committed against a person for which a court provides a remedy in the form of an action for damages. The purpose of tort law is to determine culpability, deter future violations, and award compensation to the plaintiff if applicable. Medical malpractice is referred to as a negligence tort, most often the unintentional commission or omission of an act that a reasonably prudent person would or would not do under the same circumstances, Pozgar (2007). In order to have a prima facie case of negligence, the plaintiff must prove the defendant had a duty of care, there was an identifiable breach of that duty, actual damages related to injury, and causation due to departure from the standard of care, Pozgar (2007).
The patient is brought to the emergency department (ED) in a private vehicle, apparently not requiring an ambulance or emergency medical services at the scene of the accident. Although accompanying family or friends were able to provide the triage nurse with a baseline mentation assessment, that is no substitute for a more accurate indicator of head trauma, such as sequential Glascow Coma Scale (GCS) assessments taken at the scene and throughout the ED stay. This assessment was not documented. It is unknown how much time elapsed from accident to ED arrival, but Kim (2006) states a worsening GCS over time is an accurate indicator of predicted outcome for head trauma; extremely time-sensitive injuries that require rapid diagnosis and expedited transfer for neurosurgical evaluation. Although the defendants argued that the non-emergent presentation of the patient explained their lack of urgency, Abad et al (2009) noted emergency personnel should be aware that air gun injuries can be fatal and should not be trivialized, and that careful, thorough history and examination are imperative in the management of such injuries. Sampalis et al (1997) concurs that improved outcomes are associated with transport from the scene directly to Level 1 trauma centers, but also calls for more research on effective triage from rural areas.
This ED is likely rurally located and not a Level 1 trauma center since neither computer tomography (CT) technician nor neurosurgeon are on site, two criteria required for that distinction, according to the American College of Surgeons (2006). The patient is held in triage for an hour before being x-rayed, indicating this ED is short- staffed and/or overcrowded. Documentation is not available to demonstrate that the initial nurse’s examination included frequent vital signs, neurological assessments, but rather only noted general appearance of alertness and ability to ambulate. Gallo (1994) called for standards of care for trauma patients more than fifteen years ago and addressed the role of trauma nurses in preparing for potential trauma patients’ arrival by reserving a room for unexpected trauma; providing continuous monitoring such as telemetry or sequential assessments every fifteen minutes; and strict documentation requirements that include an Injury Severity Scoring (ISS), GCS, or Abbreviated Injury Scale (AIS). The date of this article lends evidence that standards of care have been readily available to all EDs, regardless of size or location for many years.
By the time the x-ray is taken, the technician notes the patient’s condition has deteriorated, appearing lethargic. Only after the x-ray results are received does it appear the physician is aware of the patient and orders CT of the head and initiates neurosurgery referral. The CT technician is on call and must travel to the hospital. Svenson (2008) states the development of a statewide trauma system and outreach education is needed to improve early diagnosis and shorten transfer times when indicated. Precious time taken to obtain radiological testing is proven detrimental in this case study. Svenson (2008) found that in the majority of cases studied, the CT scan was repeated at the receiving hospital, as was in this case, and should not delay transfer.
Upon arrival at the receiving hospital, a repeat CT scan is performed and the patient is evaluated by a neurosurgeon and taken to surgery within two hours. Kim (2006) noted patients who received surgery within four hours of arrival had half the likelihood of mortality when compared to those who received surgery greater than four hours after ED arrival. Unfortunately, the time frame for this case exceeded this window and resulted in a less than optimal outcome for the patient as well as the defendants. The much quicker response time at the receiving hospital gives stark contrast to the timeline at the initial ED, lending evidence to the more experienced staff.
“The ED is the source of a disproportionate number of malpractice claims at most hospitals, so it should be a primary focus of attention for risk managers, in fact, twenty percent of all claims originate in the ED”, says Diane Sixsmith, MD, MPH, FACEP, chairwoman of emergency medicine at New York Hospital Medical Center, as quoted from Health & Wellness Resource Center (HWRC) 2004. Furthermore, Sixsmith warns that most ED malpractice claims arise from what physicians and staff do not do, rather than errors committed. This is supported by statistics that reveal 90% of ED malpractice claims involve discharged patients, not those admitted.
Effective sentinel event analysis should consist of data collection, investigation, determination and reporting of root causes, implementation of corrective actions, and monitoring for sustainability (McDonald & Leyhane 2005). For thorough analysis to occur, an atmosphere of learning that is apart from blaming, needs to exist across multiple disciplines within a non-punitive culture. This maximizes participation of staff and ultimately results in lower liability for the institution.
A Systems Analysis of the EDs standards of care would be beneficial to determine if clinicians are following best practices for the conditions most likely to result in malpractice claims. This process would involve developing and posting triage flow sheets complete with on call information for support services and nearest available specialty services as well as transport options. Nursing would need to develop documentation tools that prompt the required frequent assessments for specific trauma. The risk manager would be appropriate in helping to establish institutional and procedural policies that would facilitate prompt patient care. Radiology would need to assess timeliness of on call response and explore the need for 24/7 on site coverage. Administration would need to consider the costs and benefits of staffing for such trauma events. Varkey et al (2009) calls for risk managers to view the interrelationships of parties as one common process in order to solve institutional problems holistically.
Timeline analysis would be helpful in determining how the process could have been made more efficient, looking at all departments involved and how each delay contributed to the overall outcome. HWRC (2004) states head injuries are the most time-sensitive symptom presented in the ED and that reducing one’s liability begins with ensuring the patient gets prompt treatment. A CT scan should be done within thirty minutes of arrival, coupled with rapid neurosurgical response. Administration would need to assess current policy and implement changes that address timely response.
Root cause analysis (RCA) would be helpful to determine how to prevent similar outcomes in the future. Directing corrective measures at root causes minimizes problem recurrence. According to Varkey (2009), detailed analysis by individuals experienced in the day-to-day operations and redirection of the focus away from individuals to systems, displays errors as opportunities for improvement and not personal finger-pointing. Tracing the events back to the root cause could in this case, determine that the non-emergent presentation of the patient gave the ED staff a false sense of non-urgency. Gorrie (2002) quotes Ellen Barton, JD, CPCU as stating that when the patient looks “good”, the physician can more easily overlook the “bad”. Because RCAs focus on processes and not individual performance, more than just one person’s misjudgment is found at fault.
Competency review of nurses and physicians would be beneficial to determine the training and education level of those ED employees. Trauma certification, trauma-specific continuing education, and trauma in-service opportunities would be critical points to consider in improving staff critical thinking. Administration may be willing to provide incentives to staff for completion of trauma training as well as recognition for memberships in professional organizations.
Survey outcomes from this ED and other rural facilities regarding trauma assessment and triage would provide beneficial statistics when approaching hospital administration regarding financially sensitive objectives. Medical institutions would be wise to apply principles from the Aviation Safety Reporting System to assess adverse events. Voluntary reports are catalogued and analyzed, and when trends are identified, alerts are sent out to the medical community (Rajasekaran et al 2008).These findings could possibly be beneficial in spear-heading legislation for a state-wide trauma system. At the very least, small, rural EDs sharing information and working collectively to improve patient outcomes is a worthy endeavor.
This case study would be classified as a sentinel event, an unexpected occurrence involving serious injury, and thus signals the need for immediate response for investigation and systems improvement in order to prevent a recurrence, Pozgar (2007). All pertinent risk management techniques should be employed to thoroughly and quickly evaluate every aspect of the event, reporting to the institution’s administration, and implementing necessary change, not only to impact quality patient care but also to reduce other such events resulting in lawsuits.
- Abad, S., McHenry, I., Carter, L., &Mitchell, D. (2009). Carotid artery injury from an airgun pellet: a case report and review of the literature. Head & Face Medicine 5(3).
- American College of Surgeons, n.d. Resources for optimal care of the injured patient. (2006) retrieved from website www.facs.org.
- Gallo, K., Keane-Guercio, P. (1994). Emergency department assessment of the adult trauma patient. Trauma Nursing, 1(1), 21-32.
- Gorrie, J. (2002). Delay in transfer results in death: $5 million awarded. Healthcare Risk Management. Aug 2002.
- Health & Wellness Resource Center (2004). Lower the risk of ED malpractice claims by addressing five underlying conditions: ED produces high percentage of claims, but strategies can help. Healthcare Risk Management, Jan 2004 v26 i1 p1(4).
- Kim, Y., (2006). Time to surgery and outcomes in patients with head injury. University of Maryland, Baltimore, PhD. (doctoral dissertation-research).
- McDonald, A. & Leyhame, T. (2005). Drill down with root cause analysis: Know the source of the spark while protecting yourself from the fire. Nurse Manager 36(10): 26-32.
- Pozgar, G. (2007). Legal aspects of health care administration. (10th ed). Jones and Bartlett Publishers: Sudbury, MA.
- Rajasekaran, K., Fairbanks, R., & Shah, M. (2008). No more blame & shame: developing event reporting systems may go a long way to reducing patient care errors. EMS September 2008, (pp 61-67).
- Sampalis, J., Denis, R., Frechette, P., Brown, R., Fleiszer, D., & Mulder, D. (1997). Direct transport to tertiary trauma centers versus transfer from lower level facilities: impact on mortality and morbidity among patients with major trauma. Journal of Trauma. 43(2), 288-296.
- Svendson, J. (2008). Trauma systems and timing of patient transfer: are we improving? American Journal of Emergency Medicine, 26(4), 465-468.
- Varkey, P., Hernandez, J., & Schwenk, N. (2009). 6 techniques for creative problem solving. Physician Executive Journal, May-June 2009, pp. 50-52.