Ch.12-LegalAspectsofHealtcare.docx

Hospital Departments and Allied Professionals

It’s Your Gavel…

DYING AT THE HOSPITAL’S DOOR … TROUBLING QUESTIONS

While communications were breaking down among a child’s parent, a 9-1-1 dispatcher, and hospital personnel, the child’s condition was quickly deteriorating. Twelve hours later, the three-year-old girl was brain dead, and she expired three days later. Although there are several central issues involved in this story, the frustrating dialogue that took place is particularly important.

The 9-1-1 dispatcher answers the phone:

Dispatcher: 9-1-1; is this an emergency?

Parent: Yes, it’s an emergency. I need an ambulance. I have a 3-year-old daughter that’s passed out on me.

Dispatcher: OK. Where do you need the ambulance?

Parent: I’m right in front of the emergency exit at Coral Springs Hospital.

Dispatcher: You’re right in front of the emergency exit?

Parent: Yes, that’s exactly where I am. And they won’t do a … thing in this place.

The dispatcher phones the hospital emergency department:

Dispatcher: There’s a guy that says he’s right outside your emergency exit. And he needs an ambulance. He says his 3-year-old daughter is passed out.

Hospital: This is a guy who wants to be seen quicker. We’re busy—so he figured if he called 9-1-1 he’d be seen quicker.

Dispatcher: Well, he’s saying he needs an ambulance right away. Is somebody going to go out there, or not?

Hospital: There’s nothing we can do.

The parents were offered an out-of-court settlement totaling $200,000. This tragedy might have been prevented if the patient had been screened and triaged by a person competent to determine the patient’s need for immediate care. Failure to assign triage responsibility to a competent individual can lead to lawsuits that involve not only the hospital, but also the supervisor who assigns responsibilities to unqualified staff members.

WHAT IS YOUR VERDICT?

__________

Learning Objectives

The reader, upon completion of this chapter, will be able to:

• Describe the wide variety of legal issues that occur in the emergency department setting.

• Understand the purpose of the Emergency Medical Treatment and Active Labor Act.

• Describe a variety of negligent errors by various healthcare professionals that have applications to most caregivers.

• Describe the purpose of certification and licensure, and the reasons for revocation of licenses.

• Explain the importance of a multidisciplinary approach to patient care.

This chapter presents an overview of selected departments and healthcare professions. Although it describes a variety of legal issues, there is no intensive review of any specific department or profession. Many of the cases presented in this chapter could have been discussed in more than one chapter; they were placed here to illustrate that no healthcare profession is exempt from the long arm of the legal system. Healthcare professionals are held to the prevailing standard of care required in their profession, which includes proper assessments, reassessments, diagnosis, treatment, and follow-up care.

12.1 EMERGENCY DEPARTMENT

Emergency departments, see , are high-risk areas that tend to be a main source of lawsuits for hospitals. Results of the Harvard Medical Practice Study revealed that the hospital emergency department is “a real hot spot” for negligence. In this study, 70% of adverse events occurring in the emergency department were because of negligence. Hospital emergency departments, which are heavily used by patients as primary care clinics, are a major source of adverse events because of poor follow-up care. Suits that end up in a courtroom are small in number compared with the out-of-court settlements.

$216.7 Million Medical Malpractice Verdict in Florida

A Florida jury yesterday awarded a whopping $100.1 million in punitive damages to a Tampa man who was left brain-damaged and disabled after hospital emergency room doctors misdiagnosed stroke symptoms for a headache. Including compensatory damages of $116.7 million, the jury awarded Allan Navarro $216.7 million. The verdict is the third largest U.S. medical malpractice award ever, according to data compiled by Bloomberg.

—Peter Lattman, The Wall Street Journal, October 4, 2006

Both federal and state regulations, as well as standards set by accrediting agencies, may be considered by the courts to establish the duty of hospital emergency departments to provide emergency care to those who present themselves with the need for such care. Hospitals, for example, under the Emergency Medical Treatment and Labor Act (EMTALA) are required to first provide stabilizing treatment and transfer to an appropriate healthcare facility when necessary.

Figure 12-1

The courts recognize a general duty to care for all patients presenting themselves to hospital emergency departments. Not only must hospitals accept, treat, and transfer emergency department patients if such is necessary for the patients’ well-being, but they also must adhere to the standards of care they have set for themselves, as well as to national standards.

Emergency Medical Treatment and Active Labor Act

In 1986, Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA), which forbids Medicare-participating hospitals from “dumping” patients out of emergency departments. The act provides that:

[i]n the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition … exists.

The term emergency medical condition under EMTALA has been defined as:

(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part; or

(B) with respect to a pregnant woman who is having contractions, (i) that there is inadequate time to effect a safe transfer to another facility before delivery, or (ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.

Under EMTALA, hospital emergency rooms are subject to two principal obligations, commonly referred to as (1) the appropriate medical screening requirement and (2) the stabilization requirement. The appropriate medical screening requirement obligates hospital emergency rooms to provide an appropriate medical screening to any individual seeking treatment to determine whether the individual has an emergency medical condition. If an emergency medical condition exists, the hospital is required to provide stabilization treatment before transferring the individual.

Screening Appropriate

On May 4, 2000, Nolen, pregnant with triplets, arrived at the hospital for a labor check at the direction of her physician, Dr. Zann. She complained of cramping and a mucous discharge that she feared signaled the onset of labor. After an initial assessment was performed, Dr. Zann arrived and performed an examination. He concluded that Nolen’s lower uterine segment was consistent with what he expected from a normal pregnancy in this circumstance. Dr. Zann discharged Nolen from the hospital. He instructed Nolen to keep her scheduled appointment with her perinatologist, Dr. Scott, the next morning.

After leaving the hospital, Nolen testified at deposition that she began cramping. She made no effort to contact Dr. Zann or the hospital after this change in condition. When she reached Dr. Scott’s office the next morning, Nolen fully described the events of the previous day and her change in condition after leaving the hospital. Dr. Scott examined Nolen and sent her back to the hospital to suppress her preterm labor. Nolen was transferred on May 7 to Broward General Hospital where she went into preterm labor. Her first baby was stillborn, and her other two babies subsequently failed to survive. Nolen contended that the hospital did not have a standard written screening procedure or, alternatively, that the hospital did not follow its screening procedure, either of which, she contended, violated the EMTALA.

The record shows that Nolen received superior care from the hospital, primarily from her private physician, who provided care beyond the screening mandated by EMTALA. Nolen’s argument that the hospital was required to have a written screening procedure failed because a written procedure is not required by the terms of EMTALA.

Stabilizing the Patient

Patients can be transferred after being medically screened by a physician, stabilized, and cleared for transfer by the receiving institution. Stabilized means “with respect to an emergency medical condition … to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or to occur during the transfer of the individual from a facility.”

Failure to Stabilize Patient

The plaintiff in Huckaby v. East Ala. Med. Ctr. brought an action against the hospital alleging that the patient was transferred from the hospital’s emergency department before her condition was stabilized. The patient went to the hospital, suffering from a stroke. The complaint alleged that the patient’s condition was critical and materially deteriorating. The attending emergency department physician, Dr. Wheat, informed the patient’s family that she needed the services of a neurosurgeon but that the hospital had problems in getting neurosurgeons to accept patients. Upon the recommendation of Wheat, the patient was transferred to another hospital where she expired soon after arrival. The plaintiff alleged that Wheat did not inform the family regarding the risks of transfer and that the transfer of the patient in an unstable condition was the proximate cause of her death. Did the plaintiff have a cause of action under EMTALA?

The U.S. District Court held that the plaintiff stated a cause of action under EMTALA for which monetary relief could be granted. For the plaintiff to overcome the defendant’s motion to dismiss the case, the plaintiff had to demonstrate that, under EMTALA, the patient: (1) went to the defendant’s emergency department; (2) was diagnosed with an emergency medical condition; (3) was not provided with adequate screening; and (4) was discharged and transferred to another hospital before her emergency condition was stabilized. The plaintiff met this standard.

Failure to follow EMTALA can result in civil penalties. In addition, any individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the state in which the hospital is located.

Inappropriate Transfer

In Burditt v. U.S. Department of Health and Human Services, EMTALA was violated by a physician when he ordered a woman with dangerously high blood pressure (210/130) and in active labor with ruptured membranes to be transferred from the emergency department of one hospital to another hospital 170 miles away. The physician was assessed a penalty of $20,000. Dr. Louis Sullivan, secretary of the Department of Health and Human Services at that time, issued this statement:

This decision sends a message to physicians everywhere that they need to provide quality care to everyone in need of emergency treatment who comes to a hospital. This is a significant opinion and we are pleased with the result.

The American Public Health Association, in filing an amicus curiae, advised the appeals court that if Burditt wants to ensure that he will never be asked to treat a patient not of his choosing, then he ought to vote with his feet by affiliating only with hospitals that do not accept Medicare funds or do not have an emergency department.

Screening and Discharge Appropriate

Fifteen-year-old Nydia, in Marshall v. East Carroll-Parish Hospital Service District, was brought by ambulance to the hospital emergency department because she “wouldn’t move” while at school after the bell rang. Upon her arrival, hospital personnel took her history and vital signs. She was unable to communicate verbally but cooperated with hospital staff. She was examined by Dr. Horowitz, who diagnosed Nydia as having a respiratory infection and discharged her. He informed Nydia’s mother, Ms. Marshall, that her daughter’s failure to communicate was of unknown etiology and advised her to continue administering the medications that had been prescribed by the family physician on the previous day and to return to the emergency department if her condition deteriorated. The complaint alleged that, later that same day, Nydia’s symptoms continued to worsen, and she was taken to the emergency department at a different hospital, where she was diagnosed as suffering from a cerebrovascular accident.

The action claimed that the hospital violated EMTALA by failing to provide Nydia with an appropriate medical screening examination and failing to stabilize her condition prior to discharge. The hospital moved for summary judgment and submitted supporting affidavits from Dr. Horowitz and a registered nurse who participated in Nydia’s treatment in the hospital’s emergency department. The district court granted summary judgment for the hospital on grounds that no material fact issues were in dispute.

Marshall, on appeal, claimed that hospital personnel knew that Nydia had an emergency medical condition and were concerned about the cursory examination provided by Dr. Horowitz and that Nydia should have been admitted to the hospital for observation of her unexplained altered mental status. Marshall argued that Dr. Horowitz committed malpractice by failing to accurately diagnose an emergency medical condition.

EMTALA was not intended to be used as a federal malpractice statute but, instead, was enacted to prevent patient dumping (the practice of refusing to treat patients unable to pay for care). An EMTALA-appropriate medical screening examination is not judged by its proficiency in accurately diagnosing a patient’s illness, but rather by whether it was performed equitably in comparison to other patients with similar symptoms. If a hospital provides an appropriate medical screening examination, it is not liable under EMTALA even if the physician who performed the examination made a misdiagnosis that could subject him or her and the employer to liability in a medical malpractice action. The affidavits submitted by the hospital stated that Nydia was given an appropriate medical screening examination that would have been performed on any other patient and that she was not diagnosed as having an emergency medical condition.

The court determined that the hospital was entitled to summary judgment as a matter of law because there was no material fact issue as to whether Dr. Horowitz conducted an appropriate medical screening examination. The stabilization and transfer provisions of EMTALA are triggered only after a hospital determines that an individual has an emergency medical condition. The hospital has no duty under EMTALA to stabilize a condition that was not diagnosed during an appropriate screening examination. The physician here did not diagnose an emergency situation; therefore, this case is not an EMTALA issue. However, an issue in malpractice under the state’s tort law can be raised.

Discharge Found Appropriate

In Holcomb v. Humana Med. Corp., the administrator of the estate of a deceased patient, Smith, sued the hospital, alleging a violation of EMTALA. Smith entered the emergency department on May 4, 1990, a week after giving birth, with a complaint of a fever, aching, sore throat, and coughing. Both a physician’s assistant (PA) and a physician examined Smith. The examination revealed that Smith had a temperature of 104.3°F, a pulse of 146, respirations of 32, and a blood pressure of 112/64. Diagnostic tests ordered included a white blood cell count, urine analysis, and chest X-ray. After reviewing Smith’s complaints and medical history, results of the physical examination, and test results, the physician diagnosed the patient as having a viral infection. The physician ordered Tylenol and intravenous (IV) fluids as treatment. Smith was maintained in the emergency department overnight. The physician conducted a second physical examination during the night. By morning, Smith’s vital signs had returned to normal. She was discharged with instructions for bed rest, fluids, and a request to return to the hospital if her condition worsened.

After returning home, Smith reported that she was feeling better but then took a turn for the worse and was admitted to Jackson Hospital on May 6, 1990. She was diagnosed with endometritis and subsequently died on May 9, 1990.

Was the patient inappropriately discharged from the emergency department under provisions of EMTALA? The U.S. District Court for the Middle District of Alabama held that there was no EMTALA violation. The patient was appropriately examined and screened. The care rendered was standard for any patient based on the complaints given. In addition, the plaintiff failed to demonstrate that an emergency condition existed at the time the patient was discharged on May 4.

Limited to Actions Against Hospital

The decedent in Ballachino v. Anders went to the hospital on May 15, 1990, with complaints of chest pain and repeated episodes of loss of consciousness. The physicians allegedly failed to provide an appropriate medical screening examination and failed to determine whether an emergency medical condition existed. The patient’s survivor and representative brought an action against the hospital and physicians, alleging violations of EMTALA and medical malpractice. EMTALA requires that a Medicare-provider hospital offer an appropriate medical screening examination to determine whether an emergency medical condition exists for any individual who presents to the emergency department seeking treatment. If the hospital determines that an emergency medical condition exists, then it must either stabilize the patient or provide for transfer of the patient to a facility capable of meeting the patient’s medical needs.

The United States District Court, W.D. New York held that there is no private right of action against the individual physicians under EMTALA. However, the representative’s complaint did state a claim against the hospital under EMTALA. The enforcement provision of EMTALA is explicitly limited to actions against a Medicare-participating hospital. Although the physicians were alleged to have acted in concert in rendering professional medical and surgical care and treatment to the decedent while at the hospital, the physicians importantly are nowhere alleged to have provided any emergency screening examination. The plaintiff clearly alleged that the defendants negligently failed to provide an appropriate medical screening examination and failed to determine whether an emergency medical condition existed for the decedent. The court was faced with the question of whether any emergency screening examination occurred at all. The plaintiff also alleged that the hospital failed in its stabilization and transfer procedures. The District Court determined that all of the allegations taken together stated an EMTALA claim against the hospital.

Wrong Record—Grave and Fatal Mistake

Dr. McManus had not realized that he had made a grave and fatal mistake. Dr. McManus had looked at the wrong chart. …

Terry Trahan, in Trahan v. McManus, was taken to the hospital after being injured in an automobile accident. Terry’s parents were informed about the accident and asked to come to the hospital. Mrs. Trahan drove to the hospital and consulted with Dr. McManus, the emergency department physician who treated Terry. Dr. McManus assured Mrs. Trahan that it would be all right to take her son home because there was nothing more that could be done for him at the hospital.

Upon ordering discharge, however, Dr. McManus had not realized that he had made a grave and fatal mistake. Dr. McManus had looked at the wrong chart in determining Terry’s status. Dr. McManus had looked at a chart that indicated that the patient’s vital signs were normal. In fact, the correct chart showed that Terry had three broken ribs as a result of the accident. His blood pressure was 90/60 when he was admitted to the emergency department. Forty-five minutes after being admitted, Terry’s blood pressure had dropped to 80/50, and his respiration rate had doubled. Terry’s vital signs clearly indicated that he was suffering from internal hemorrhaging.

In the 7 hours following his discharge, Terry’s condition continued to worsen. Terry complained to his parents about severe pain. He could not turn from his back to his side without the aid of his father. Several hours after being brought home from the hospital, Mr. Trahan noticed that Terry’s abdomen was swelling. Mrs. Trahan immediately called the hospital. Mr. Trahan asked Terry if he wanted to sit up. Terry replied, “Well, we can try.” Those were Terry’s final words. Terry slumped in his father’s arms and his head fell forward. When Mr. Trahan attempted to lift Terry’s head, Terry’s face was white. Mr. Trahan immediately laid his son down on the bed, realizing for the first time that his son was not breathing and had no pulse. He attempted CPR as Mrs. Trahan called for an ambulance. Mr. Trahan continued CPR until the ambulance arrived a few minutes later. Terry was pronounced dead on arrival at the hospital.

Subsequently, during a medical review panel proceeding in which the Trahans participated, Dr. McManus admitted liability by tendering his $100,000 limit of liability, pursuant to the Medical Malpractice Act.

A jury returned a verdict absolving Dr. McManus of any liability, finding that Terry’s injuries would have occurred despite the physician’s failure to use reasonable care in his treatment of Terry. The Trahans appealed. On appeal, the jury’s determination was found to be clearly erroneous when it concluded that the physician’s actions were not the cause-in-fact of Terry’s death. The record is replete with testimony, including Dr. McManus’s own admissions, that he acted negligently when he discharged Terry, that his actions led to Terry’s death, and that there was treatment available that could have made a difference.

Duty to Contact On-Call Physician

Hospitals are expected to notify specialty on-call physicians when their particular skills are required in the emergency department. A physician who is on call and fails to respond to a request to attend a patient can be liable for injuries suffered by the patient because of his or her failure to respond.

Failure to Contact On-Call Physician

In Thomas v. Corso, a patient had been brought to the hospital emergency department after he was struck by a car. A physician did not attend to him even though he had dangerously low blood pressure and was in shock. There was some telephone contact between the nurse in the emergency department and the physician who was providing on-call coverage. The physician did not act upon the hospital’s call for assistance until the patient was close to death. Expert testimony was not necessary to establish what common sense made evident—the patient struck by a car may have suffered internal injuries and should have been evaluated and treated by a physician. Lack of attention in such cases is not reasonable care by any standard. The concurrent negligence of the nurse, who failed to contact the on-call physician after the patient’s condition worsened, did not relieve the physician of liability for his failure to respond to his on-call duty. Because of the nurse’s negligence, the hospital is liable under the doctrine of respondeat superior.

Failure to Respond to Call

Treatment rendered by hospitals is expected to be commensurate with that available in the same or similar communities or in hospitals generally. In Fjerstad v. Knutson, the South Dakota Supreme Court found that a hospital could be held liable for the failure of an on-call physician to respond to a call from the emergency department. An intern, who attempted to contact the on-call physician and was unable to do so for 3.5 hours, treated and discharged the patient. The hospital was responsible for assigning on-call physicians and ensuring that they would be available when called. The patient died during the night in a motel room as a result of asphyxia resulting from a swelling of the larynx, tonsils, and epiglottis that blocked the trachea. Testimony indicated that the emergency department’s on-call physician was to be available for consultation and was assigned that duty by the hospital. Expert testimony also was offered that someone with the decedent’s symptoms should have been hospitalized and that such care could have saved the decedent’s life. The jury believed that an experienced physician would have taken the necessary steps to save the decedent’s life.

Timely Response Required

Not only are hospitals required to care for emergency patients, but they also are required to do so in a timely fashion. In Marks v. Mandel, a Florida trial court was found to have erred in directing a verdict against the plaintiff. It was decided that the relevant inquiry in this case was whether the hospital and the supervisor should bear ultimate responsibility for failure of the specialty on-call system to function properly. Jury issues had been raised by evidence that the standard for on-call systems was to have a specialist attending the patient within a reasonable period of being called.

Notice of Inability to Respond to Call

In Millard v. Corrado, the Missouri Appellate Court found that on-call physicians owe a duty to provide reasonable notice when they will be unavailable to respond to calls. Physicians who cannot fulfill their on-call responsibilities must provide notice as soon as practicable once they learn of the circumstances that will render them unavailable. Imposing a duty on on-call physicians to notify hospital staff of their unavailability does not place an unreasonable burden. In this case, a mere telephone call would have significantly reduced the 4-hour period between an accident and life-saving surgery. Whatever slight inconvenience may be associated with notifying the hospital of the on-call physician’s availability is trivial when compared with the substantial risk to patients.

Objectives of Emergency Care

The objectives of emergency care are the same regardless of severity. No matter how seemingly trivial the complaint, each patient must be examined. Treatment must begin as rapidly as possible, function is to be maintained or restored, scarring and deformity minimized. Every patient must be treated regardless of ability to pay.

As the Sixth Circuit points out, there are many reasons other than indigence that might lead a hospital to give less than standard attention to a person who arrives at the emergency room doors. These might include: prejudice against the race, sex, or ethnic group of the patient; distaste for the patient’s condition (e.g., acquired immune deficiency syndrome [AIDS] patients); personal dislike or antagonism between medical personnel and the patient; disapproval of the patient’s occupation; or political or cultural opposition. If a hospital refuses treatment to persons for any of these reasons, or gives cursory treatment, the evil inflicted would be quite akin to that discussed by Congress in the legislative history, and the patient would fall squarely in the statutory language.

Patient Leaves Emergency Department Without Notice

The patient and her sister became upset with the care offered, left the hospital, and went home without proper discharge. The patient died 2 days later at home. The county coroner’s office initiated a postmortem examination and determined the patient died from meningoencephalitis. The patient made a conscious decision to leave the hospital on her own accord without the knowledge or permission of the hospital. She did not tell the doctors, nurses, or anyone else that she was leaving the emergency room; she just left without informing anyone.

In a wrongful death medical malpractice action alleging negligence, the trial court properly granted the hospital summary judgment because under Ohio law, an emergency room nurse has no duty to interfere with a patient who refuses treatment and decides to leave the emergency department without notifying hospital staff.

Failure to Admit

Roy went to the emergency department complaining of chest pains. The attending physician, Dr. Gupta, upon examination, determined that Roy exhibited normal vital signs. Gupta performed an electrocardiogram that showed ischemic changes indicating a lack of oxygen to the heart tissue. He applied a transdermal nitroglycerin patch and gave her a prescription for nitroglycerin. After monitoring her progress, he sent her home. Several hours later, she returned to the emergency department, experiencing more chest pains. She was admitted to the hospital, and it was determined that she was having a heart attack. Three days later, Roy died of a massive myocardial infarction.

Gupta was found negligent in failing to hospitalize Roy or failing to inform her of the serious nature of her illness. The trial court found that had Roy been hospitalized on her first visit, her chances of survival would have been increased. On appeal, the Louisiana Court of Appeal held that Gupta was negligent by failing to advise Roy that she should be hospitalized for chest pains. All of the medical expert witnesses, except Dr. Kilpatrick, a defense witness, testified that Roy should have been admitted. Kilpatrick testified that such a decision varied greatly among physicians. The trial court disregarded his testimony because of his hostile responses to questioning.

The trial judge was not convinced by Gupta’s explanation of why Roy was not hospitalized. He focused on Gupta’s failure to have X-rays taken during the first visit, which might have allowed him to determine whether the ischemic changes were a result of her hypertension medication or indicated the beginning of a heart attack. The relative simplicity of the technique and its obvious availability lent credence to the trial judge’s belief that the requisite attention was not paid to Roy’s complaints. The law does not require proof that proper treatment would have been the difference between Roy’s living or dying: It requires only proof that proper treatment would have increased her chances of survival.

Documentation Sparse and Contradictory

An ambulance team found 26-year-old Feeney intoxicated and sitting on a street corner in South Boston. Feeney admitted to alcohol abuse but denied that he used drugs. He was physically and verbally combative, and he had trouble walking and speaking intelligibly. His condition interfered with conducting an examination, and he was transported by ambulance to the hospital.

Documentation at the hospital between 10:45 PM and 11:30 PM was sparse and contradictory. The minimum standard for nursing care required monitoring the patient’s respiratory rate every 15 minutes. It was doubtful that this occurred. This monitoring would have more than likely permitted the nursing staff to observe changes in the patient’s breathing patterns and/or the onset of respiratory arrest. The emergency department physician failed to evaluate the patient and to initiate care within the first few minutes of Feeney’s entry into the emergency facility. The emergency physician had an obligation to determine who was waiting for physician care and how critical the need was for that care. Had the standards been maintained, respiratory arrest might have been averted. According to the autopsy report, respiratory arrest was the sole cause of death.

The failure to provide adequate care rationally could be attributed to the staff nurse assigned to the area in which the patient lay, as well as to the physicians in charge. The hospital was implicated on the basis of the acts or omissions of its staff.

Telephone Medicine Can Be Costly

The diagnosis and treatment of patients by telephone can be costly. As noted in Futch v. Attwood, the record shows that on the morning of February 28, 1990, Lauren, a 4-year-old diabetic child, awoke her mother, Wanda. She had vomited two or three times, and her glucose reading was high. Wanda administered Lauren’s morning insulin and intended to feed her a light breakfast before bringing her to see Dr. Attwood, a pediatrician, at about 9:45 AM. According to the plaintiff, Dr. Attwood did not check Lauren’s blood sugar level or her urine to determine whether ketones were present. If Dr. Atwood had done so, Lauren’s condition could have been quickly corrected by the simple administration of insulin. Instead of administering insulin, however, Dr. Attwood prescribed the use of Phenergan suppositories to address Lauren’s symptoms. Lauren’s symptoms of nausea continued, and she was taken to the hospital emergency department. Hospital personnel contacted Attwood. Attwood returned the call and again prescribed a Phenergan injection. Attwood did not go to the hospital and had not been given Lauren’s vital signs when he suggested such an injection; furthermore, he failed to order any blood or urine tests.

Wanda returned home with Lauren at approximately 8:00 PM and put her to bed, waking her around midnight to administer the prescribed medication. Lauren woke but went back to sleep. Early the next morning, Wanda awoke and found Lauren with labored breathing. While attempting to wake up the 4-year-old, the only responses, according to the plaintiff’s brief, were “huh” followed by moaning. Wanda telephoned Attwood and informed him of her daughter’s far worsened condition. Attwood admitted Lauren to the hospital at 6:30 AM that morning.

Hospital records revealed that Lauren’s glucose level was 507 at the time of admission, with her blood acid revealing diabetic ketoacidosis. At approximately 9:13 AM, Lauren went into respiratory arrest as a result of her brain swelling with rupturing into the opening at the base of her neck. Lauren was immediately transported by helicopter to Children’s Hospital in New Orleans and diagnosed with ketoacidotic coma, cerebral edema, and bilateral pulmonary edema. She was pronounced dead at 5:07 PM on March 2, 1990.

Lauren and her mother were virtually inseparable, except when Wanda was at school. All of this changed in Lauren’s last few days when she was rushed to New Orleans. During Lauren’s 2.5 days of illness, every moment seemed worse than the previous. The mother witnessed her daughter’s decline in health, and her protracted wait was punctuated only by various traumatic episodes: Lauren’s respiratory intubation; her respiratory failure and consequent code blue; numerous medical staff scurrying in and out to see Lauren behind doors closed to Wanda; and, finally, Wanda’s being asked to consider whether she would prefer to “pull the plug” on her daughter or to watch her linger indefinitely. Confronted with this dilemma, the young mother opted not to punish her daughter with more torment. She decided to let her go and did. For Wanda, the period following Lauren’s death has been marked by the inevitable sense of loss of a daughter and by the guilt of a mother whose unrelenting loss compels her to ask what she might have done differently to save her child’s life.

The trial court allocated $98,000 for the conscious pain and suffering. The defendant complained that the award of $98,000 was excessive. On appeal, the appellate court could not find that the trial court had erred in concluding what sum was fair.

Improving Emergency Department Patient Care

Emergency department care can be improved and lawsuits minimized by:

• treating each patient courteously and promptly, regardless of ability to pay;

• providing adequate staff to care for patients;

• requiring timely response by on-call physicians;

• not taking lightly any patient’s complaint;

• triaging, assessing, and treating seriously ill patients first;

• communicating with the patient and family to ensure a complete and accurate picture of the patient’s symptoms and complaints are obtained;

• providing an appropriate examination of the patient based on the presenting complaint(s) and symptoms (failure to do this may be the single most common and sometimes fatal mistake in emergency departments);

• obtaining patient consent for procedures when possible;

• providing a mechanism for obtaining consultations when necessary;

• requiring that hospitals determine what types of patients and levels of care they can safely address;

• knowing when to admit or stabilize and transfer a patient;

• maintaining thorough and complete medical records for each patient treated;

• ensuring that each patient’s records treated in other settings within the organization (e.g., ambulatory care settings) are readily available;

• establishing criteria for admission and discharge;

• ensuring all patients are assessed and treated by a physician prior to discharge;

• ensuring that patient education is provided in the emergency department prior to discharging each patient;

• ensuring all documentation is completed prior to each patient’s discharge;

• providing a procedure for reading X-rays and other imaging studies when there is no radiologist readily available;

• instituting a preventive maintenance program for emergency department equipment;

• determining which diagnoses can be safely addressed within the organization;

• assuring open lines of communications between hospitals and emergency medical services personnel when addressing transport and care issues;

• making appropriate arrangements, when required, for transfer;

• providing continuing education programs for all staff members; and

• requiring mandatory administrative rounds to the emergency department by the risk manager, medical director, chief nursing officer, and chief executive officer.

Emergency Rooms Vital to Public Safety

McBride, in Simmons v. Tuomey Regional Medical Center, was involved in an accident while driving his moped. Upon learning of the accident, Simmons, McBride’s daughter, rushed to the scene, where she found emergency services personnel attending to an injury to the back of her father’s head. McBride was taken to Tuomey where Simmons signed an admission form for her father. The admission form contained the following provision:

The Physicians Practicing in this Emergency Room are not Employees of the Tuomey Regional Medical Center. They are Independent Physicians, as are All Physicians Practicing in this Hospital.

While in Tuomey’s emergency department, Drs. Cooper and Anderson examined McBride. Despite McBride’s confused state, the physicians decided to treat his contusions and release him from the hospital. The physicians, apparently attributing McBride’s confusion to intoxication, did not treat his head injury.

The next day, McBride returned to Tuomey where his head injury was diagnosed as a subdural hematoma. Ultimately, McBride was transported to Richland Memorial Hospital. Approximately 6 weeks later, McBride died of complications from the hematoma.

When Simmons brought suit, Tuomey moved for summary judgment by alleging that it was not liable because the physicians were independent contractors. Tuomey relied on its June 1987 contract with Coastal Physicians Services, which set forth the procedures by which Coastal would provide emergency department physicians to Tuomey. The carefully worded contract referred numerous times to physicians as independent contractors and stated that Tuomey agreed not to exercise any control over the means, manner, or methods by which any physician supplied by Coastal carries out his duties. The trial court accorded great weight to the Coastal–Tuomey contract when it granted Tuomey’s motion for summary judgment. Simmons appealed, arguing that the trial court erred in granting summary judgment on the issues of actual agency, apparent agency, and nondelegable duty.

The operation of emergency departments is such an important activity to the community that hospitals should be liable for the negligence of emergency department caregivers. Few things are more comforting in today’s society than knowing that immediate medical care is available around the clock at any hospital. As the Texas Court of Appeals astutely observed:

Emergency rooms are aptly named and vital to public safety. There exists no other place to find immediate medical care. The dynamics that drive paying patients to a hospital’s emergency rooms are known well. Either a sudden injury occurs, a child breaks his arm or an individual suffers a heart attack, or an existing medical condition worsens, a diabetic lapses into a coma, demanding immediate medical attention at the nearest emergency room. The catch phrase in legal nomenclature, “time is of the essence,” takes on real meaning. Generally, one cannot choose to pass by the nearest emergency room, and after arrival, it would be improvident to depart in hope of finding one that provides services through employees rather than independent contractors. The patient is there and must rely on the services available and agree to pay the premium charged for those services.

The public not only relies on the medical care rendered by emergency departments, but also considers the hospital as a single entity providing all of its medical services. A set of commentators observed:

[T]he hospital itself has come to be perceived as the provider of medical services. According to this view, patients come to the hospital to be cured, and the doctors who practice there are the hospital’s instrumentalities, regardless of the nature of the private arrangements between the hospital and the physician. Whether or not this perception is accurate seemingly matters little when weighed against the momentum of changing public perception and attendant public policy.

Public reliance and public perceptions, as well as the regulations imposed on hospitals, have created an absolute duty for hospitals to provide competent medical care in their emergency departments. Hospitals contributed to the shift in public perception through commercial advertisements. By actively soliciting business, hospitals effectively removed themselves from the sterile world of altruistic agencies. The Alaska Supreme Court, the first American court to recognize a nondelegable duty in the hospital context, wrote:

Not only is [finding a nondelegable duty] consonant with the public perception of the hospital as a multifaceted health care facility responsible for the quality of medical care and treatment rendered, it also treats tort liability in the medical arena in a manner that is consistent with the commercialization of American medicine.

The real effect of finding a duty to be nondelegable is to render not the duty, but the liability, not delegable; the person subject to a nondelegable duty is certainly free to delegate the duty, but will be liable to third parties for any negligence of the delegatee, regardless of any fault on the part of the delegator.

Given the cumulative public policies surrounding the operation of emergency departments and the legal requirement that hospitals provide emergency services, hospitals must be accountable in tort for the actions of caregivers working in their emergency departments. The court in this case agreed with a New York court, which wrote:

In this Court’s opinion it is public policy, and not traditional rules of the law of agency or the law of torts, which should underlie the decision to hold hospitals liable for malpractice which occurs in their emergency rooms. In this regard the observation of former U.S. Supreme Court Justice Oliver Wendell Holmes is apt: “The true grounds of decision are consideration of policy and of social advantage, and it is vain to suppose that solutions can be attained merely by logic and the general propositions of law which nobody disputes. Propositions as to public policy rarely are unanimously accepted, and still more rarely, if ever, are capable of unanswerable proof.”

The appeals court in Tuomey held that hospitals have a nondelegable duty to render competent service to the patients of their emergency departments. The trial court’s grant of summary judgment was reversed, and the case was remanded for further proceedings.

State Regulations

Legislation in many states imposes a duty on hospitals to provide emergency care. The statutes implicitly, and sometimes explicitly, require hospitals to provide some degree of emergency service.

If the public is aware that a hospital furnishes emergency services and relies on that knowledge, the hospital has a duty to provide those services to the public. Two Mexican children, burned in a fire at home, were refused admission or first aid by a local hospital. A lawsuit was filed claiming that additional injury occurred as a result of the failure to render care. The trial court dismissed the suit. On appeal, the Arizona Court of Appeals found the defendants liable, claiming that it was the custom of the hospital to render aid in such a case. The Arizona Supreme Court, in finding the defendants liable, reasoned that state statutes and licensing regulations mandate that a hospital may not deny a patient emergency care.

State statutes, such as the New York State Emergency Medical Services Act, provide that every hospital shall admit persons in need of immediate hospitalization. Any licensed medical practitioner who refuses to treat a person arriving at a general hospital for emergency medical treatment will be guilty of a misdemeanor and subject to up to 1 year in prison and a fine. Emergency medical technicians, paramedics, and ambulance drivers are expected to report any refusals by hospitals to treat emergency patients. Patients may be transferred only after they have been stabilized if it is deemed by the attending physician to be in the best interest of the patient.

12.2 CHIROPRACTOR

A chiropractor is required to exercise the same degree of care, judgment, and skill exercised by other reasonable chiropractors under like or similar circumstances. He or she has a duty to determine whether a patient is treatable through chiropractic means and to refrain from chiropractic treatment when a reasonable chiropractor would or should be aware that a patient’s condition will not respond to chiropractic treatment. Failure to conform to the standard of care can result in liability for any injuries suffered.

Immoral Conduct

The chief medical officer of the Nebraska Department of Health and Human Services Regulation and Licensure entered an order revoking Poor’s license to practice as a chiropractor in the state of Nebraska. Poor engaged in a conspiracy to manufacture and distribute a misbranded substance, and he introduced into interstate commerce misbranded and adulterated drugs with the intent to defraud and mislead. He was arrested for driving under the influence and was convicted of that offense. In addition, Poor knowingly possessed cocaine. He conceded that these factual determinations were understood as beyond dispute.

Crack!

Elizabeth Haran Caplan knew she was in trouble seconds after a chiropractor in Oklahoma City manipulated her neck. The room got dark and she felt dizzy. Because of her years of service as a combat medic in Kosovo and Somalia, she knew what was happening and yelled, “Stop. I’m having a stroke.”

• • •

She had gotten treatment many times before and doesn’t recall ever being given a consent form. Given her medical background, she says she never would have gone ahead with the treatment if she’d read that there was an even rare risk of a stroke. “I would have read it and left,” she said.

—Susan Berger, The Washington Post, January 7, 2014

Both the district and appellate courts found that Poor’s conduct was clearly immoral. The appellate court stated that Poor’s denial now, after taking advantage of a plea bargain, that he committed any of the acts he admitted to in the U.S. District Court is disturbing and is not consistent with the integrity expected by persons engaged in a professional occupation.

The Supreme Court of Nebraska, as a result of the seriousness of Poor’s felony conviction and its underlying conduct, his subsequent lack of candor with respect to that conduct, and his lack of sound judgment demonstrated by his driving under the influence conviction, concluded that revocation of Poor’s license was an appropriate sanction.

12.3 DENTISTRY

Dental malpractice cases are generally related to patients who suffer from complications of a dental procedure. They can involve the improper treatment of dental infections or complications from the improper administration of anesthesia. Complications can also include damage to the nerves of the lower jaw, face, chin, lips, and tongue. Injuries can involve high-speed drills damaging the tongue and can result in permanent loss of sensation or taste.

Drill Bit Left in Tooth

The patient, in Mazor v. Isaacman, visited the defendantdentist in August 1997 for routine root canal surgery. After the surgery, the patient began experiencing constant pain in the tooth in which the root canal was performed. The dentist told the patient that such pain was ordinarily felt after root canal surgery. In February 1999, the patient visited another dentist, who discovered that a piece of a drill bit had been left inside the patient’s tooth during the previous root canal. The patient filed a lawsuit against the defendant-dentist for dental malpractice. The defendant-dentist filed a motion to dismiss, arguing that the patient did not bring the claim within the 1-year statute of limitations. This motion was granted, and the patient appealed. The Tennessee Court of Appeals reversed the finding, holding that the patient had 1 year from the time she discovered or should have discovered the foreign object in which to file her lawsuit.

Tennessee Code Annotated § 29-26-116(a)(4) (2000) states that “where a foreign object has been negligently left in a patient’s body … the action shall be commenced within one (1) year after the alleged injury or wrongful act is discovered or should have been discovered.” This statute has been interpreted to require only that the plaintiff bring the action within 1 year after the foreign object was discovered or should have been discovered.

Failure to Refer

Dr. Smith told O’Neal that tooth number 14, an upper left molar, should be extracted. O’Neal advised Smith that another dentist warned her that tooth number 14 should not be pulled because it was embedded in the sinus. Smith responded that all of her top teeth were in the sinus and that extraction was no problem. O’Neal relented to Smith’s judgment, and tooth number 14 was extracted. Complications developed in the extraction process, resulting in an oral antral perforation of the sinus cavity wall. Four days after the extraction, Smith began root canal work, even though the antral opening wound was not healed. Three weeks after the extraction, a tissue mass developed in the tooth socket and the patient was referred to Dr. Herbert, an oral surgeon.

Herbert testified that the degree of infection inhibited proper healing and closure of the extraction site. After several more months, O’Neal was referred to Dr. Berman, an ear, nose, and throat specialist. Because of the continual deterioration, Berman performed a surgical procedure that sealed the extraction site. The surgery required hospitalization.

O’Neal brought a malpractice action against Smith. The trial court entered judgment in favor of O’Neal. Smith appealed, arguing that the evidence was factually insufficient to support the judgment.

An expert witness testified that Smith was negligent for not referring the patient to an oral surgeon for the necessary extraction because of the known risks of roots embedded in the sinus floor. Smith was also negligent for not referring the patient to a specialist when the antral perforation first occurred and later by not referring her to a specialist when the fistula and the infection manifested. Expert testimony was found sufficient to support a jury finding that the defendant was negligent in the treatment of his patient.

Lack of Consent

The plaintiff in Gaskin v. Goldwasser brought a suit against an oral surgeon alleging dental malpractice. The oral surgeon had removed 19 of the teeth remaining in the plaintiff’s mouth. The defendant admitted that 5 of the 19 teeth were removed without the consent of the patient. The circuit court entered a judgment for the plaintiff on a jury verdict for damages resulting from the extraction of the five lower teeth. On appeal, the appellate court held that the patient was entitled to have the allegation of willful and wanton misconduct and battery for unauthorized removal of the lower teeth submitted to the jury. The case was remanded for a new trial.

Failure to Prescribe Antibiotics

In Pasquale v. Miller, the plaintiff brought a suit against the defendant, Dr. Miller, for dental malpractice. Miller treated the plaintiff for swollen gums. He removed tissue from the patient’s gums and used sutures to control the bleeding. Although it was common practice to prescribe antibiotics prior to or following gum surgery, Miller failed to prescribe antibiotics in either case. The following May, after the plaintiff experienced a persistent fever, she was diagnosed as having contracted subacute bacterial endocarditis. The plaintiff was treated in the hospital for nearly a month. Miller claimed that the bacterial infection could have resulted from a number of causes. The trial court, upon a jury verdict, found for the plaintiff. An appeals court held that the evidence supported a finding of causation.

The plaintiff’s expert witnesses testified that her endocarditis was related to the dental surgery and that one of the risks of not prescribing an antibiotic is that bacteria can flow through the bloodstream to the heart. The jury rejected testimony from Miller that endocarditis could have been caused by something other than failure to administer antibiotics prior to or following gum surgery.

Failure to Follow Sterile Technique

In Kirschner v. Mills, there was sufficient evidence to support a charge that the dentist failed to wear protective gloves while performing a medical examination. That charge was supported by testimony of the patient, whom a hearing panel found to be credible, that the dentist did not wear gloves during the examination. The violation of accepted practice was also supported by the testimony of the dentist’s own expert, a fellow dentist, who opined that it was necessary to wear gloves any time you put your hands on a patient.

Practicing Outside Scope of Competency

Brown, in Brown v. Belinfante, sued Dr. Belinfante and the Atlanta Orthofacial Surgicenter, LLC, after Belinfante performed several elective cosmetic procedures including a face lift, eyelid revision, and facial laser resurfacing. Belinfante is not a physician. He is licensed to practice dentistry in Georgia and was employed by the Surgicenter. Brown claims that after the cosmetic procedures, she could not close her eyes completely, developed chronic bilateral eye infections, and required remedial corrective surgery. Among other things, Brown alleged that Belinfante’s performance of the cosmetic procedures constituted negligence per se because he exceeded the scope of the practice of dentistry.

The Georgia Court of Appeals held that cosmetic procedures of this nature do not fall within Georgia statutes. The primary purposes of the Georgia Dental Act are to define and regulate the practice of dentistry. The statute limits the scope of the practice of dentistry. Such limitation protects the health and welfare of patients who submit themselves to the care of dentists by guarding against injuries caused by inadequate care or by unauthorized individuals. Brown falls within that class of persons that the statute was intended to protect, and the harm complained of was of the type the statute was intended to guard against. In performing the elective cosmetic procedures, Belinfante violated the Dental Practice Act by exceeding the statutory limits of the scope of dentistry and, therefore, committed negligence per se.

Failure to Supervise Dental Assistant

The plaintiff in Hickman v. Sexton Dental Clinic brought a malpractice action against a dental clinic for a serious cut under her tongue. The dental assistant, without being supervised by a dentist, placed a sharp object into the patient’s mouth, cutting her tongue while taking impressions for dentures. The court of common pleas entered a judgment on a jury verdict in favor of the plaintiff, and the clinic appealed. The court of appeals held that evidence presented was sufficient to infer without the aid of expert testimony that there was a breach of duty to the patient. The testimony of Dr. Tepper, the clinic dentist, was found pertinent to the issue of the common knowledge exception in which the evidence permits the jury to recognize breach of duty without the aid of expert testimony. Tepper presented the following testimony regarding denture impressions:

Q. You also stated that you have taken, I believe, thousands?

A. Probably more than that.

Q. Of impressions?

A. Yes, sir.

Q. This never happened before?

A. No, sir, not a laceration.

Q. Would it be safe and accurate to say that if someone’s mouth were to be cut during the impression process, someone did something wrong?

A. Yes, sir.

Dental Hygienist Administers Nitrous Oxide

A dental hygienist alleged that her employer-defendant allowed dental hygienists to administer nitrous oxide to patients. Under New York state law, dental hygienists may not administer nitrous oxide. The Department of Education’s Office of Professional Discipline investigated the complaint by using an undercover investigator. The investigator made an appointment for teeth cleaning. At the time of her appointment, she requested that nitrous oxide be administered. Agreeing to the investigator’s request, the dental hygienist administered the nitrous oxide. There were no notations in the patient’s chart indicating that she had been administered nitrous oxide.

A hearing panel found the dental hygienist guilty of administering nitrous oxide without being properly licensed. In addition, the hearing panel found that the dental hygienist had failed to accurately record in the patient’s chart that she administered nitrous oxide.

The New York Supreme Court, Appellate Division, held that the investigator’s report provided sufficient evidence to support the hearing panel’s determination. There is adequate evidence in the record to support a finding that the dentist’s conduct was such that it could reasonably be said that he permitted the dental hygienist to perform acts that she was not licensed to perform.

12.4 LABORATORY

An organization must provide for clinical laboratory services to meet the needs of its patients. Each healthcare organization is responsible for the quality and timeliness of the services provided. Because it is often necessary to contract out certain tests, the healthcare organization should be confident that it is contracting for services with a reputable licensed laboratory.

Georgetown U. Hospital Shuts Lab After Problems with Cancer Tests

Georgetown University Hospital has shut down a lab that performs genetic analysis for breast cancer patients and has had 249 women’s tissue samples independently retested while federal officials investigate procedures at the lab.

Hospital officials said the process ultimately identified two women who have been falsely told they did not have a particular aggressive form of breast cancer, known as HER2 positive.

• • •

… the hospital learned early this year that lab staff members were not using proper temperature, timing and tissue–embedding methods in processing samples. That caused the lab to fail quality control test for HER2 he said.

—Lena H. Sun, The Washington Post, August 6, 2010

An organization’s laboratory provides data that are vital to a patient’s treatment. Among its many functions, the laboratory monitors therapeutic ranges; measures blood levels for toxicity; places and monitors instrumentation on patient units; provides education for the nursing staff (e.g., glucose monitoring); provides valuable data used in research studies; provides data in selecting, for example, the most effective and economical antibiotic for treating patients; serves in a consultative role; and provides valuable data as to the nutritional needs of patients.

In order to improve timely reporting of lab results, performance improvement processes should be implemented that include pertinent data collection that can be used to measure and assess the success of timely reporting. The analysis of data collection is only valuable in improving the quality of patient care if appropriate steps are taken to improve outcomes. Using data outcomes serves its purpose when changes are made and better practices implemented, thus reducing laboratory-related lawsuits.

Failure to Follow Transfusion Protocol

Fowler, in Fowler v. Bossano, gave birth to twins on March 26, 1996. As a result of premature birth, the twins were transferred to Lake Charles Memorial Hospital (LCMH) and were cared for by Bossano, a neonatologist. The infants experienced complications and problems associated with premature birth, including respiratory and feeding difficulties. The twins’ treatment included blood transfusions. Bossano stated that the twins proceeded through these difficulties and began to make progress, but then Ryan (one of the twins) took a turn for the worse. According to Bossano, Ryan’s condition generally continued to deteriorate until he died on May 25. Bossano stated that the most likely cause of death was a viral infection. At his urging, an autopsy was performed, and the pathologist found the presence of cytomegalovirus (CMV) inclusion disease. Bossano stated that he learned that the lab at the hospital did not, at that time, screen for the presence of the virus in the blood used for transfusions.

Ryan’s parents instituted proceedings under the Medical Malpractice Act, convening a medical review panel against Bossano and LCMH. The panel determined that the evidence presented did not support a finding that Bossano breached the standard of care. As for the hospital, the panel found that the evidence showed that it failed to comply with the appropriate standard of care with regard to the testing of blood. The child most likely expired from an overwhelming CMV viral infection resulting from blood product usage.

The formal policy of the hospital’s blood bank for selecting components for neonatal transfusion provided that blood products such as irradiated or CMV-negative products are available upon request but are not routinely used. The 16th edition of Standards for Blood Banks and Transfusion Services by the American Association of Blood Banks (AABB) provides, in Section 18.500, that “Where transfusion-associated CMV disease is a problem, cellular components should be selected or processed to reduce that risk to infant recipients weighing less than 1200 grams at birth, when either the infant or the mother is CMV antibody-negative or that information is unknown.”

The hospital’s policy did not provide for compliance with the applicable AABB policy at that time, so LCMH had the obligation to properly inform the medical staff and ensure that all such infants who might be affected could be readily identified. Bossano should have been able to make a correct medical assumption that all high-risk infants receiving blood products in the neonatal intensive care unit would receive CMV negative blood products.

The Fowlers decided to file suit naming both Bossano and the hospital as defendants. They sought damages associated with a survival action and those for wrongful death. The jury found for the plaintiffs. LCMH breached the applicable standard of care by failing to test the blood used for this transfusion for CMV. The evidence presented was sufficient to support the jury’s determination that the hospital’s breach of the standard of care was the cause of Ryan’s death.

Mismatched Blood

A laboratory technician in Barnes Hospital v. Missouri Commission on Human Rights had been discharged because of inferior work performance. On three occasions, the employee allegedly mismatched blood. The employee filed a complaint with the Commission on Human Rights, alleging racial discrimination as a reason for his discharge by the hospital. The hospital appealed, and the circuit court reversed the commission’s order. The technician appealed to the Missouri Supreme Court, which held that the evidence did not support the ruling of racial discrimination by the Missouri Commission on Human Rights.

In Dodson v. Community Ctr., 633 So. 2d 252 (La. Ct. App. 1993), the patient was scheduled to undergo surgery at a medical center. In anticipation of the surgery and out of fear of contracting acquired immunodeficiency syndrome (AIDS) through blood transfusions from unknown donors, the patient arranged to have three known donors donate blood earmarked for his use should transfusion be required. After surgery, the patient was transfused with 2 pints of blood. However, the blood used was not the blood obtained from the patient’s voluntary donors. The blood had been taken from the hospital’s general inventory, which had been obtained from the community blood center. The patient subsequently learned that as a result of the transfusions, he had been infected with hepatitis C. A lawsuit was brought and the plaintiff was awarded $325,000 in general damages. The defendant appealed the amount of the award. The Louisiana Court of Appeal held that the award of damages was not excessive. In reasons for judgment, the trial court found that the patient was a credible witness. The plaintiff did not exaggerate his symptoms, fears, or worries about his condition. The court believed the patient when he said he felt like a leper and feared infecting his wife, child, and friends with the disease. The trial court arrived at what it determined to be an appropriate award for general damages. After careful review of the record and in light of the vast discretion of the trial court to assess general damages, the court found that there was no abuse of discretion.

Refusal to Work with Certain Blood Specimens

A laboratory technician was found to have been properly dismissed from her job for refusing to perform chemical examinations on vials with acquired immunodeficiency syndrome (AIDS) warnings attached in Stepp v. Review Board of the Indiana Employment Security Division. The court of appeals held that the employee was dismissed for just cause and that the laboratory did not waive its right to compel employees to perform assigned tasks.

Failure to Diagnose Cervical Cancer

Cervical cancer is often curable when diagnosed in its early stages. A Pap smear screening makes early stage diagnosis of cervical cancer possible when properly performed and accurately read. Because of any one or more of the following: (1) the failure of a physician to order and/or review the results of Pap smears; (2) the carelessness on the part of laboratory staff in performing the test; (3) the failure of a pathologist to either review the test or make an accurate diagnosis; and/or (4) the failure to communicate test results to physicians and patients, the opportunity for early diagnosis and treatment is lost. In addition to these failures, the failure of a patient’s physician to thoroughly follow up on a patient’s test results can lead to late-stage treatment and sometimes early death, as noted in the following case.

LOST CHANCE OF SURVIVAL

Citation: Sander v. Geib, Elston, Frost Prof’l Ass’n, 506 N.W.2d 107 (S.D. 1993)

Facts

The patient had several gynecological examinations, including Pap smears, in 1977, 1978, 1980, 1984, 1986, and 1987. The patient’s physician performed the examinations. Specimens for the Pap test were submitted to a laboratory for evaluation. The laboratory procedure included a clerk assigning each specimen a number when it was received. A cytotechnologist would then screen the specimen. If the specimen was determined to be abnormal, it would be marked for review by a pathologist. Out of the Pap tests that were determined to be normal, only 1 in 10 was actually viewed by a pathologist. The pathologist made recommendations based on the classification of the Pap tests. A biopsy would be recommended if the Pap test was determined to be Class IV.

Except for the Pap test in 1987, which showed premalignant cellular changes, all of the patient’s other Pap tests were determined to be negative. In 1986, the laboratory made a notation to the patient’s physician that “moderate inflammation” was present. The patient’s physician, who was treating her with antibiotics for a foot inflammation, thought that the medication would also treat the other inflammation. In September 1987, the patient returned to her physician complaining of pain, erratic periods, and tiredness. After completing a physical, her physician took a Pap test, which he sent to the laboratory. He also referred her to a gynecologist. The pathologist recommended a biopsy. Biopsies and further physical examinations revealed squamous cell carcinoma that had spread to her pelvic bones. Her Pap tests were reexamined by the laboratory, which reported that the 1986 smear showed that malignancy was highly likely. The patient was referred to the University of Minnesota to determine whether she was a viable candidate for radiation treatment. The cancer, however, had spread, and the patient was not considered a candidate for radiation treatment because she had no chance of survival. When the university reviewed all of the available slides, they found cellular changes back to 1984.

The patient sued in 1988, alleging that the laboratory failed to detect and report cellular changes in her Pap tests in time to prevent the spread of the cancer. Before trial, the patient died. Her husband and sister were substituted as plaintiffs, and the complaint was amended to include a wrongful death action. After trial, a jury awarded $3.7 million in damages, which were reduced to $1 million by the circuit court. The jury found against the laboratory, and the laboratory appealed.

Issue

Was it erroneous for the trial court to submit to the jury the 1988 negligence claim based on the 1984 slide?

Holding

The South Dakota Supreme Court upheld the jury verdict and restored the $3.7 million damage award.

Reason

The court determined that evidence relating to negligence claims pertaining to Pap tests taken more than 2 years before filing the action was admissible because the patient had a continuing relationship with the clinical laboratory as a result of her physician submitting her Pap tests to the laboratory over a period of time.

Discussion

1. What changes in procedure should the laboratory take to help ensure that Pap tests are properly classified?

2. How might continuous quality improvement activities improve the laboratory’s operations?

Surgical Specimen

Procedures to reduce the risk of surgical specimen discrepancies and mix-ups of patient specimens can help prevent a wrong diagnosis for the patients involved. For example, two patients in different operating rooms at the same hospital at the same time could have breast biopsies performed in the laboratory on a stat basis. If the tissue slides are incorrectly labeled, the pathology readings sent back to the operating room could result in each patient getting the other patient’s results. Assuming one patient is cancer free and the other is not, the wrong patient gets a mastectomy and the other wakes up believing she did not have cancer.

Procedures must be in place to ensure that the correct specimens are being placed in the correct containers and properly labeled at the surgical table. Specimens, including blood, must not leave one’s possession until labeled. A strict chain of custody for each specimen must be maintained.

A pathology report discrepancy can occur when one pathologist renders a diagnosis and a second pathologist, looking at the same tissue, renders a different diagnosis. The pathology interpretation of the tissue reviewed can alter a clinician’s treatment plan and the patient’s prognosis. A review of discrepancies between pathologists and/or a physician’s diagnosis should be reviewed on an inter- and intradepartmental basis in order to improve the quality of patient care.

12.5 MEDICAL ASSISTANT

A medical assistant is an unlicensed person who provides administrative, clerical, and/or technical support to a licensed practitioner. A licensed practitioner is generally required to be physically present in the treatment facility, medical office, or ambulatory facility when a medical assistant is performing procedures. Employment of medical assistants is expected to grow much faster than the average for all occupations as the health services industry expands. This growth is a result, in part, of technologic advances in medicine and a growing and aging population. Increasing use of medical assistants in the rapidly growing healthcare industry will most likely result in continuing employment growth for the occupation.

Medical assistants work in physicians’ offices, clinics, nursing homes, and ambulatory care settings. The duties of medical assistants vary from office to office, depending on the location and size of the practice and the practitioner’s specialty. In small practices, medical assistants usually are generalists, handling both administrative and clinical duties. Those in large practices tend to specialize in a particular area, under supervision. Administrative duties often include answering telephones, greeting patients, updating and filing patients’ medical records, filling out insurance forms, handling correspondence, scheduling appointments, arranging for hospital admission and laboratory services, and handling billing and bookkeeping. Clinical duties vary according to state law and include assisting in taking medical histories, recording vital signs, explaining treatment procedures to patients, preparing patients for examination, and assisting the practitioner during examinations. Medical assistants collect and prepare laboratory specimens or perform basic laboratory tests on the premises, dispose of contaminated supplies, and sterilize medical instruments. They instruct patients about medications and special diets, prepare and administer medications as directed by a physician, authorize drug refills as directed, telephone prescriptions to a pharmacy, prepare patients for X-rays, perform electrocardiograms, remove sutures, and change dressings.

Medical assistants who specialize have additional duties. Podiatric medical assistants make castings of feet, expose and develop X-rays, and assist podiatrists in surgery. Ophthalmic medical assistants help ophthalmologists provide eye care. They conduct diagnostic tests, measure and record vision, and test eye muscle function. They also show patients how to insert, remove, and care for contact lenses, and they apply eye dressings. Under the direction of the physician, ophthalmic medical assistants may administer eye medications. They also maintain optical and surgical instruments and may assist the ophthalmologist in surgery.

Poor Communications

In 1987, the patient-plaintiff in Follett v. Davis had her first office visit with Dr. Davis. In the spring of 1988, Follett discovered a lump in her right breast and made an appointment to see Davis; however, the clinic had no record of her appointment. The clinic’s employees directed her to radiology for a mammogram. Davis or any other physician at the clinic did not offer Follett an examination nor was she scheduled for an examination as a follow-up to the mammogram. A technician examined Follett’s breast and confirmed the presence of a lump in her right breast. After the mammogram, clinic employees told her that she would hear from Davis if there were any problems with her mammogram.

The radiologist explained in his deposition that the mammogram was not normal. Davis reviewed the mammogram report and considered it to be negative for malignancy. He was unaware of the lump in the patient’s breast, and there was no evidence that clinic employees informed him about it. The clinic, including Davis, never contacted Follett about her lump or the mammogram. On April 6, 1990, Follett called the clinic and was told that there was nothing to worry about unless she heard from Davis. On September 24, 1990, Follett returned to the clinic after she had developed pain associated with the lump. A mammogram performed on that day gave results consistent with cancer. Three days later, Davis made an appointment for Follett with a clinic surgeon for a biopsy and treatment. Davis subsequently transferred her care to other physicians. Follett’s biopsy had confirmed the diagnosis of cancer in October 1990.

Follett filed a lawsuit and the trial court granted summary judgment to Davis on the grounds that Follett failed to file her complaint within the applicable statute of limitations and she appealed.

The Indiana Court of Appeals determined that the evidence demonstrated that, had clinic procedures been properly followed, Davis or another physician at the clinic would have had made an accurate diagnosis. Follett timely filed her proposed complaint within 2 years of her last visits to Dr. Davis and the clinic. The trial court therefore improperly granted summary judgment.

12.6 MEDICAL IMAGING

Negligence in medical imaging tests and therapies often involves a failure to protect patients from falls and the negligent handling of equipment. For example, the plaintiff in Cockerton v. Mercy Hospital Medical Center was admitted to the hospital for the purpose of surgery to correct a problem with her open bite. Her physician ordered postsurgical X-rays for her head and face to be taken the next day. A hospital employee took the plaintiff from her room to the X-ray department by wheelchair. A nurse assessed her condition as slightly drowsy. An X-ray technician took charge of the plaintiff in the X-ray room. After the plaintiff was taken inside the X-ray room, she was transferred from a wheelchair to a portable chair for the procedure. Upon being moved, the plaintiff complained of nausea, and the technician observed that the plaintiff’s pupils were dilated. The technician did not use the restraint straps to secure the plaintiff to the chair. At some point during the procedure, the plaintiff had a fainting seizure, and the technician called for help. When another hospital employee entered the room, the technician was holding the plaintiff in an upright position; she appeared nonresponsive. The plaintiff only remembered being stood up and having a lead jacket placed across her back and shoulders. The technician maintains that the plaintiff did not fall. At the time the plaintiff left the X-ray room, her level of consciousness was poor. The plaintiff’s physician noticed a deflection of the plaintiff’s nose. Because the plaintiff had fainted in X-ray, an incident report was completed at the request of the plaintiff’s physician. The following day, the deflection of the plaintiff’s nose was much more evident. A specialist was contacted, and an attempt was made to correct the deformity. The specialist made an observation that it would require a substantial injury to the nose to deflect it to that severity.

The plaintiff instituted proceedings against the hospital, alleging that the negligence of the nurses or technicians allowed her to fall during the procedure and subsequently caused injury. The trial court did not require expert testimony concerning the standard of care given by the technician. The jury concluded that the hospital was negligent in leaving the plaintiff unattended or failing to restrain her, which proximately caused her fall and injury. The jury rendered a verdict of $48,370, and the hospital appealed.

The Iowa Court of Appeals held that the patient was not required to present expert testimony on the issue of the hospital’s negligence. The conduct in question was simply the way the technician handled the plaintiff during the X-ray examination. The X-ray technician testified that during the X-ray, the plaintiff appeared to have a seizure episode. She also testified that she left the plaintiff unattended for a brief period and that she did not use the restraint straps that were attached to the portable X-ray chair. Using the restraint straps would have secured the plaintiff to the portable chair during the X-ray examination. The court found that substantial evidence existed to establish a causal connection between the hospital’s conduct and the plaintiff’s injury.

X-RAY CASSETTE FALLS ON PATIENT’S HEAD

Citation: Schopp v. Our Lady of the Lake Hospital, Inc., 739 So. 2d 338, 98 1382 (La. App. 1 Cir. 6/25/99)

Facts

On August 2, 1993, Sophie Schopp stumbled coming from her bathroom and fell, striking her head. She was unable to get up, so she lay on the floor until approximately 8:00 AM, when a home health aide came to her home for her daily visit. Her doors were locked, but Schopp told Montgomery to go across the street and get a key, which she did. Emergency medical services arrived shortly thereafter and took Schopp to the hospital. Her friend and neighbor, Guwang, followed in her car. Schopp’s friend, Haper, also came to the hospital that morning.

Schopp was taken for skull X-rays, and when she returned, the X-ray technologist, Coates, told Haper and Guwang that there had been “a little accident.” Haper testified that Coates said that the X-ray plate fell on her head. He pointed to Schopp’s head and showed Haper where it had fallen on her. Haper stated she saw no mark or bruise and thought nothing more of it. Guwang testified, however, that she pushed back Schopp’s hair and saw a blue mark on the left side of her forehead.

A computed tomography scan showed that Schopp had a large acute subdural hematoma. Dr. Perone, a board-certified neurosurgeon, performed surgery to evacuate the hematoma. Although Schopp seemed to improve initially following the surgery, her health declined thereafter, and she died on August 16, 1993.

Schopp’s sons filed suit against the hospital (defendant) and two of the defendant’s X-ray technologists, Coates and Smith. The plaintiffs later dismissed Coates and Smith but proceeded to jury trial against the hospital. The jury rendered a verdict in favor of the plaintiffs, and an appeal was taken for wrongful death.

Issue

Was Schopp’s death caused by the negligence of hospital staff dropping an X-ray cassette on her head while she underwent a skull X-ray?

Holding

Schopp’s death was caused by the negligence of hospital staff dropping an X-ray cassette on her head while she underwent a skull X-ray.

Reason

Although there was conflicting testimony as to the cause of death, Morris apparently gave the most convincing testimony regarding Schopp’s injury. Morris stated that although he did not operate, he made the diagnoses that led to surgery. He pointed out he was the one who diagnosed the subdural hematoma. He stated that there was no doubt in his mind that the incident in the X-ray room caused the hematoma. He believed that the cartridge was dropped on Schopp’s head based on her statements to him and the alarmed tone in the nurse’s voice when she called him to report the X-ray incident. He saw the soft tissue swelling on Schopp’s head and noted that the hematoma was in the exact place she had shown him where the cartridge struck her.

In this case, there were two versions of the X-ray room incident—either the cartridge tilted less than an inch and barely brushed Schopp’s head, leaving no mark, or it was dropped from some distance and struck her with enough force to leave a soft tissue injury. The jury chose to believe the second version.

12.7 NUTRITIONAL SERVICES

Healthcare organizations are expected to provide patients with diets that meet their individual needs. Failure to do so can lead to negligence suits.

Malnutrition

The daughter of the deceased in Lambert v. Beverly Enterprises, Inc. filed an action claiming that her father had been mistreated. The deceased allegedly suffered malnutrition as a direct result of the acts or omissions of personnel. In addition, the plaintiff’s father suffered actual damages that included substantial medical expenses and mental anguish as a result of the injuries he sustained. A motion to dismiss the case was denied.

Malnutrition: A Serious Concern for Hospitalized Patients

The problem of malnutrition in hospitalized patients was revealed in a 1974 article, “The Skeleton in the Hospital Closet,” by Charles Butterworth, Jr., MD, and published in Nutrition Today. Citing several cases of neglect in nutrition care, Butterworth pointed out that changes in practice were urgently needed to properly diagnose and treat undernourished patients and prevent iatrogenic malnutrition.

—Theresa A. Fessler, MS, RD, CNSD, Today’s Dietitian, July, 2008

12.8 PARAMEDIC

Many states have enacted legislation that provides civil immunity to paramedics who render emergency lifesaving services. Immunity does not, however, extend to negligent acts.

Chicago City Council Approves $1.75M Settlement in Ambulance Case

The Chicago City Council today approved a $1.75 million settlement with the family of a 13-year-old girl who died a decade ago after city paramedics allegedly botched her care amid an asthma attack.

Paramedics in July 2002 incorrectly inserted a tube meant to help Arielle Starks breathe, said Jeffrey Levine, deputy corporation counsel.

—Hal Dardick, Chicago Tribune, February 15, 2012

Wrong Dosage Administered

The plaintiff in Malone v. City of Seattle alleged that the defendant was negligent in providing care to the plaintiff after an automobile accident. The plaintiff, on appeal, contended that the trial court wrongfully instructed the jury regarding a 1971 civil immunity statute. The following is an excerpt from the relevant Washington statute:

No act or omission of any physician’s trained mobile intensive care paramedic … done or omitted in good faith while rendering emergency lifesaving service … to a person who is in immediate danger of loss of life shall impose any liability upon the trained mobile intensive care paramedic … or upon a … city or other local governmental unit.

One of the issues raised was whether the legislature intended the statute to apply only to the rendition of cardiopulmonary emergency treatment by a paramedic. The court of appeals indicated that although the definition contained in the statute places special emphasis on the paramedic’s training in all aspects of CPR, the act does not limit the paramedic to CPR. The act implicitly recognizes that paramedics may encounter different emergencies.

Protected by Good Samaritan Statute

The daughter of a deceased patient in Dunlap v. Young had brought a wrongful death action against emergency medical services (EMS) personnel for the death of her mother. The critically ill patient died after receiving care for respiratory distress in the ambulance while en route to the hospital.

Under the Good Samaritan statute, an Illinois court found that EMS personnel were not negligent in their treatment of the decedent. They had acted promptly to get the patient to the hospital. Although EMS personnel had failed to intubate the patient, she had been provided with oxygen and assisted respiration.

Inability to Diagnose Extent of Injury

In Morena v. South Hills Health Systems, the Pennsylvania Supreme Court held that paramedics were not negligent in transporting a victim of a shooting to the nearest available hospital rather than to a hospital located 5 or 6 miles away where a thoracic surgeon was present. The paramedics were not capable of diagnosing the extent of the decedent’s injury. Except for a children’s center and a burn center, there were no emergency trauma centers specifically designated for the treatment of particular injuries.

Lidocaine Administered 44 Times Normal Dosage

In Riffe v. Vereb Ambulance Service, Inc., a wrongful death action was filed by appellants against Vereb Ambulance Service, St. Francis Hospital, and Custozzo. The complaint alleged that, while responding to an emergency call, defendant Custozzo, an emergency medical technician employed by Vereb, began administering lidocaine to Anderson, as ordered over the telephone by the medical command physician at the defendant hospital. While en route to the hospital, Anderson was administered lidocaine at 44 times the normal dosage. Consequently, normal heart function was not restored, and Anderson was pronounced dead at the hospital shortly thereafter.

The superior court held that the liability of medical technicians could not be imputed to the hospital. The court noted the practical impossibility of the hospital carrying ultimate responsibility for the quality of care and treatment given patients by EMS. The focus of training and monitoring of such services must lie with EMS regional and local councils pursuant to and subject to regulations promulgated by the department of health.

Although hospitals, as facilities, participate in the overall operation of EMS services, the hospital command facility derives its function from the law and regulations relating to the operation of EMS. The networking of EMS and command facilities is such that they have a common interrelated function that is apart from the administration of the hospitals to which they are attached. Because EMS may be involved with several hospitals depending on specialization, and even allowing for patients’ directions, a hospital’s legal responsibility for the operation of any given EMS becomes too tenuous.

Failure to Transport Patient

The deceased’s parents in Lemann v. Essen Lane Daiquiris filed a wrongful death action after paramedics failed to transport their son to the hospital for evaluation after they had treated him following a fight in the parking lot of a bar. It was determined that the parents failed to establish that the paramedics breached their duty to care when they did not transport their son to the hospital. Although police officers at the scene testified that the deceased was intoxicated and had slurred speech and erratic behavior, paramedics testified that they found him to be alert and oriented. In addition, he twice refused to be transported to the hospital and signed a waiver form that acknowledged his refusal to the paramedics to transport him to the hospital.

Paramedic License Denied

The South Dakota Board of Medical and Osteopathic Examiners was found not to have acted arbitrarily in denying the petitioner’s application for a paramedic license. The record indicated that the board had considered the petitioner’s multiple felony convictions along with extensive evidence of her current conduct. Considering her six felony convictions, the board was not arbitrary and capricious in concluding that Benton did not meet her burden of proving good moral character and an absence of unprofessional or dishonorable conduct.

The appeals court was advised that the petitioner recently received a pardon for her convictions and that she had completed paramedic training in Nebraska. The board did not have the benefit of that information at the time it heard the matter, and those facts were not in the record. The appeals court could only deal with matters presented in the record and, therefore, remanded the matter to the circuit court with directions to remand to the board for further proceedings.

12.9 PHARMACY

The practice of pharmacy essentially includes preparing, compounding, dispensing, and retailing medications. These activities may be carried out only by a pharmacist with a state license or by a person exempted from the provisions of a state’s pharmacy statutes. The entire stock of drugs in a pharmacy is subject to strict government regulation and control. The pharmacist is responsible for developing, coordinating, and supervising all pharmacy activities and reviewing the drug regimens of each patient.

FDA Finds Widespread Safety Issues at Specialized Pharmacies

Federal inspectors have found dozens of potentially dangerous safety problems at 30 specialized pharmacies, months after tainted steroid shots made by a Massachusetts pharmacy triggered the worst drug disaster in decades.

◽ ◽ ◽

FDA officials say the inspections show that compounders, in many cases, are failing to ensure the safety of their products, despite months of stepped-up scrutiny from state and federal regulators as well as consumer groups.

—Lena H. Sun, The Washington Post, April 12, 2013

Medication Errors

Medication errors are considered to be a leading cause of medical injury in the United States. Antibiotics, chemotherapeutic drugs, and anticoagulants are three categories of drugs responsible for many drug-related adverse events. Because of the immense variety and complexity of medications now available, it is practically impossible for nurses or doctors to keep up with the information required for safe medication use. The pharmacist has become an essential resource in modern hospital practice. It is therefore mandatory that hospital pharmacies “have an adequate number of personnel to ensure quality pharmaceutical services, including emergencies.”

The prevention of medication errors requires recognition of common causes and the development of practices to help reduce the incidence of errors. With thousands of drugs, many of which look and sound alike, it is understandable why medication errors are so common. The following list describes some of the more common types of medication errors.

• Prescription errors include wrong patient, wrong drug, wrong dose, wrong frequency, wrong route, transcription errors (often as a result of illegible handwriting and improper use of abbreviations), inadequate review of drug ordered (e.g., known drug allergies, drug–drug and food–drug interaction[s]), and inadequate review of medication for appropriateness.

• Dispensing errors include improper preparation of medication, failure to properly formulate medications, dispensing expired medications, mislabeling containers, wrong patient, wrong dose, wrong route, and misinterpretation of physician’s order.

• Administration errors include wrong patient, wrong route, double-dosing (drug administered more than once), failure to administer medications, wrong frequency, administering discontinued drugs, administering drugs without an authorized order, and wrong dose (e.g., IV rate).

• Documentation errors include transcription errors (often as a result of illegible handwriting and improper use of abbreviations), inaccurate transcription to medication administration record (MAR), charted but not administered, administered but not documented on the MAR, discontinued order not noted on the MAR, and medication wasted and not recorded.

The Institute for Safe Medication Practices (ISMP) is a nonprofit organization based in Philadelphia devoted entirely to medication error prevention and safe medication use. The organization’s website () should be visited on a regular basis to assist in the prevention of medication errors.

Government Control of Drugs

The power and authority to regulate drugs, packaging, and distribution rest primarily with federal and state governments. Consequently, there are often two sets of regulations and standards governing the same activity. In general, states have attempted to enact laws that comply with federal laws. For example, most states have adopted the Uniform Controlled Substances Act (UCSA). This law is based on and is in conformity with the federal Controlled Substances Act. Several states have modified the UCSA in various ways, frequently setting more stringent standards than are required under the federal law.

Controlled Substances Act

The Comprehensive Drug Abuse Prevention and Control Act of 1970, commonly known as the Controlled Substances Act (CSA), was signed into law on October 27, 1970, as Public Law No. 91-513. This law replaced virtually all preexisting federal laws dealing with narcotics, depressants, and stimulants.

The CSA places all substances that are regulated under existing federal law into one of five schedules. This placement is based upon the substance’s medicinal value, harmfulness, and potential for abuse or addiction. Schedule I is reserved for the most dangerous drugs that have no recognized medical use, while Schedule V is the classification used for the least dangerous drugs. The act also provides a mechanism for substances to be controlled, added to a schedule, decontrolled, removed from control, rescheduled, or transferred from one schedule to another.

Federal Food, Drug, and Cosmetic Act

The Federal Food, Drug, and Cosmetic Act (FDCA) applies to drugs and devices carried in interstate commerce and to goods produced and distributed in federal territory. The act’s requirements apply to almost every drug that would be dispensed from a pharmacy, because nearly all drugs and devices, or their components, are eventually carried in interstate commerce.

Section 502 of the Act sets forth the information that must appear on the labels or the labeling of drugs and devices. The label must contain, among other special information: (1) the name and place of business of the manufacturer, packer, or distributor; (2) the quantity of contents; (3) the name and quantity of any ingredient found to be habit forming, along with the statement, “Warning—may be habit-forming”; (4) the established name of the drug or its ingredients; (5) adequate directions for use; (6) adequate warnings and cautions concerning conditions of use; and (7) special precautions for packaging.

The regulation implementing the labeling requirements of Section 502 exempts prescription drugs from the requirement that the label bear “adequate directions for use for laymen” if the drug is in the possession of a pharmacy or under the custody of a practitioner licensed by law to administer or prescribe legend drugs. This particular exemption applies only to prescription drugs meeting the other requirements. Ordinary household remedies in the custody or possession of a practitioner or pharmacist would not fall under the labeling exemption.

If the drug container is too small to bear a label with all the required information, the label may contain only the quantity or proportion of each active ingredient and the lot or control number. The prescription legend may appear on the outer container of such drug units. The lot or control number may appear on the crimp of a dispensing tube, and the remainder of the required label information may appear on other labeling within the package.

Besides the label itself, each legend must be accompanied by labeling, on or within the sealed package from which the drug is to be dispensed, bearing full prescribing information including indications; dosage; routes, methods, and frequency of administration; contraindications; side effects; precautions; and any other information concerning the intended use of the drug necessary for the prescriber to use the drug safely. This information usually is contained in what is known in the trade as the package insert.

State Regulations

Besides federal laws affecting the manufacture, use, and handling of drugs, the different states have controlling legislation. All states regulate the practice of pharmacy, as well as the operation of pharmacies. State regulations generally provide that: (1) each healthcare organization must ensure the availability of pharmaceutical services to meet the needs of patients; (2) pharmaceutical services must be provided in accordance with all applicable federal and state laws and regulations; (3) pharmaceutical services must be provided under the supervision of a pharmacist; (4) space and equipment must be provided within the organization for the proper storage, safeguarding, preparation, dispensing, and administration of drugs; (5) each organization must develop and implement written policies and procedures regarding accountability, distribution, and assurance of quality of all drugs; and (6) each organization must develop and follow current written procedures for the safe prescription and administration of drugs.

State laws require that pharmacies be licensed and that they be under the supervision of a person licensed to practice pharmacy. The pharmacist usually can be either an employee of the organization or a consultant. The authority of an organization to operate a pharmacy is conditioned on compliance with licensing requirements affecting the pharmacy premises and its personnel. The statutes applying to pharmacies usually empower regulatory agencies, such as the state pharmacy board, to issue rules and regulations as necessary.

Each organization is subject to liability for the negligent acts of its professional and nonprofessional employees in the handling of drugs and medications within the organization. Both the pharmacist and the organization are subject to criminal liability, as well as civil liability, for the violation of statutory directives. Most states have regulations that dictate in detail the dispensing, distribution, administration, storage, control, and disposal of drugs within healthcare organizations.

Storage of Drugs

Drugs must be stored in their original containers and must be labeled properly. The label should indicate the patient’s full name, physician, prescription number, strength of the drug, expiration date of all time-dated drugs, and the address and telephone number of the pharmacy dispensing the drug. The medication containers must be stored in a locked cabinet at the nurses’ station. Medications containing narcotics or other dangerous drugs must be stored under double lock (e.g., a locked box within the medicine cabinet). The keys to the medicine cabinet and narcotics box must be in the possession of authorized personnel. Medications for external use only must be marked clearly and kept separate from medications for internal use. Medications that are to be taken out of use must be disposed of according to federal and state laws and regulations.

Hospital Formulary

Healthcare organizations use a formulary system, whereby physicians and pharmacists create a formulary listing of drugs used in the institution. The formulary contains the brand names and generic names of drugs. Under the formulary system, a physician agrees that his or her prescription, which calls for a brand-name drug, may be filled with the generic equivalent of that drug (i.e., a drug that contains the same active ingredients in the same proportions). If there is a medical contraindication to prescribing a generic drug for a particular patient, the physician may prescribe the brand-name drug. Hospitals that dispense and administer a generic drug for financial reasons when a brand-name drug is requested for medical reasons will most likely be liable for any harm suffered by the patient as a result of being administered the generic equivalent of the brand-name drug.

Dispensing and Administration of Drugs

The dispensing of medications is the processing of a drug for delivery or for administration to a patient pursuant to the order of an appropriately licensed healthcare practitioner. It consists of checking the directions on the label with the directions on the prescription or order to determine accuracy; selecting the drug from stock to fill the order; counting, measuring, compounding, or preparing the drug; placing the drug in the proper container; and adding to a written prescription any required notations.

Inside a Pharmacy Where a Fatal Error Occurred

Lewis typed up a prescription label with erroneous dosage instructions. About 36 hours later, Smith died of what an autopsy found was an accidental methadone overdose.

It may be impossible to fix blame precisely for Smith’s death, in part because Walgreens in December settled the lawsuit with his family in a confidential agreement that bars any discussion of the case. However, the depositions and interviews gathered before the settlement suggest that both a technician with limited experience and a pharmacist coping with a heavy workload figured in the tragedy.

—Kevin McKoy, USA Today, February 12, 2008

The administration of medications is an act in which an authorized person, in accordance with federal and state laws and regulations, gives a single dose of a prescribed drug to a patient. The complete act of administration includes removing an individual dose from a previously dispensed, properly labeled container (including a unit-dose container); verifying it with the physician’s order; giving the individual dose to the proper patient; and recording the time and dose given.

Each dose of a drug administered must be recorded on the patient’s clinical records. A separate record of narcotic drugs must be maintained. The narcotic record must contain the following information: date and time administered, physician’s name, signature of person administering the dose, and the balance of the narcotic drug on hand.

In the event that an emergency arises requiring the immediate administration of a particular drug, the patient’s record should be documented properly, showing the necessity for administration of the drug on an emergency basis. Procedures should be in place for handling emergency situations.

Drug Substitution

Drug substitution may be defined as the dispensing of a different drug or brand in place of the drug or brand ordered. Several states prohibit this, and penal sanctions, including loss of license, are imposed for violation of the law.

Expanding Role of Pharmacist

Historically, the role of the pharmacist was centered on the management of the pharmacy and the accurate dispensing of drugs. The duties and responsibilities of pharmacists have moved well beyond the concept of filling prescriptions and dispensing drugs. Schools of pharmacy have recognized the ever-expanding role of the pharmacist into the clinical aspects of patient care—so much so that educational requirements are getting more stringent, with emphasis on clinical education and application. Pharmacists now, among other duties, maintain patient medication profiles and monitor patient profiles, looking for incompatibilities between drug–drug and food–drug interactions.

Pharmacists have an ever-expanding clinical role in the delivery of patient care. For example, pharmacists often maintain a separate telephone line in hospitals for caregivers and practitioners to use to discuss medication usage. Pharmacists play an important role when they respond and participate in reviving patients in cardiac arrest. Their knowledge of drugs, potential drug interactions, and proper dosing can be the difference between life and death. Some hospitals have reported improved code outcomes when pharmacists attend and participate in patient codes. Although a variety of legal cases, as they apply to pharmacy, are presented in the following sections, recent legal cases of interest to pharmacists can be found at the American Society for Pharmacy Law website ().

Duty to Monitor Patient’s Medications

In Baker v. Arbor Drugs Inc., a Michigan court imposed a duty on a pharmacist to monitor a patient’s medications. The patient filled three different prescriptions by the same physician at the same pharmacy. The pharmacy maintained a computer system that detected drug–drug interactions. The pharmacy advertised to consumers that it could, through the use of a computer-monitoring system, provide a medication profile for its customers that would alert its pharmacists to potential drug–drug interactions. Because the pharmacy advertised and used the computer system to monitor the medications of its customers, the pharmacist voluntarily assumed a duty of care to detect the harmful drug–drug interaction that occurred in this case, where it was determined without question that decedent suffered injury when he suffered a stroke due to the adverse drug interaction between two drugs, Parnate and Tavist-D.

Warning Patients About Potential for Overdose

A Pennsylvania court held that a pharmacist failed to warn the patient about the maximum dosage of a drug the patient could take. This failure resulted in an overdose, causing permanent injuries. Expert testimony focused on the fact that a pharmacist who receives inadequate instructions as to the maximum recommended dosage has a duty to ascertain whether the patient is aware of the limitations concerning the use of the drug. The pharmacist should have contacted the prescribing physician to clarify the prescription.

Refuse to Honor Questionable Prescription

In Hooks v. McLaughlin, the Indiana Supreme Court held that a pharmacist had a duty to refuse to refill prescriptions at an unreasonably faster rate than prescribed pending directions from the prescribing physician. The Indiana code provides that a pharmacist is immune from civil prosecution or civil liability if he or she, in good faith, refuses to honor a prescription because, in his or her professional judgment, the honoring of the prescription would aid or abet an addiction or habit.

Limited Duty to Warn

The rules and regulations promulgated by the Georgia State Board of Pharmacy require a generalized duty on the part of pharmacists to warn of every potentially adverse drug reaction. In this case, the pharmacy was properly granted summary judgment with respect to claims arising from a patient’s extreme allergic reaction, namely, Stevens–Johnson syndrome, to a prescription drug—Daypro, a nonsteroidal anti-inflammatory drug—even though it was alleged that the pharmacist failed to warn the patient of the potential side effects of the drug.

Refusal to Fill Prescription

The plaintiff, in Sellars v. Walgreen Co., filed a complaint on behalf of himself and the wrongful death beneficiaries of his mother against Walgreen Co., alleging that a Walgreens pharmacist negligently caused the death of his mother for refusing to fill her prescription without first receiving promise of payment. Walgreens filed for summary judgment with the Lee County Circuit Court, which the court granted. The plaintiff appealed, alleging that the court erred in granting summary judgment because there were genuine issues of material fact.

The Court of Appeals of the State of Mississippi found no error in the County Court’s decision to grant summary judgment for the defendants, finding no issue of material fact that established a legal duty or standard of care owed by Walgreens to the deceased.

Failure to Consult with the Patient’s Physician

The pharmacist in Warren v. Walgreen was found negligent for failing to warn a deceased patient about possible drug interactions when filling two prescriptions over 2 days. In this case, the pharmacist increased the dosage of the second drug without consulting a physician.

Intravenous Admixture Service

Intravenous fluids, with or without added medications, are generally prepared in an IV admixture room by highly skilled and trained pharmacists and technicians. Pharmacists are expected to oversee the work of pharmacy technicians. Medications prepared in admixture rooms include antibiotics, chemotherapy, and electrolytes, as well as intravenous nutrition solutions that are tailored for each patient’s needs. Elements crucial to the process of preparing sterile products include stability of the mixtures, sterility, solubility of added ingredients, considerations of incompatibilities, storage, and proper labeling. Proper disposal is a key consideration for the protection of personnel and the environment.

Error That Led to Baby’s Death Slipped Through Many Hands

When a mistake goes through at least six staffers at Summerlin Hospital Medical Center, leading to the death of a premature baby, there’s only one word to describe it, according to Dr. Florence Jameson, past president of the Clark County Medical Society:

“Sloppy.”

The mistakes that led up to Alyssa Shinn’s death on Nov. 9 started the night before when pharmacist Pamela Goff mishandled the entry of Alyssa’s prescription into the pharmacy’s computer. It ended with neonatal intensive care unit nurses hanging an IV bag containing zinc at 1,000 times the amount prescribed the preemie.

—Annette Wells, Las Vegas Review Journal, August 5, 2007

A sterile compounding environment is maintained with the use of laminar flow hoods and aseptic techniques. Vertical and horizontal laminar flow hood cabinets are utilized in the preparation of intravenous fluids. The cabinets are designed for creation of a bacterial dust–free air space. They are utilized for work with low-risk substances and materials, when protection of working material from the environment is required or work with an item requires a sterile working space. The hoods are maintained daily and periodically certified for proper functioning.

Aseptic technique is the key to producing a sterile product. The American Society of Health-System Pharmacists and the Occupational Safety and Health Administration, amongst others, provide guidelines and regulations in order to provide for a safe working environment.

An observational study of the accuracy in compounding IV admixtures at five hospitals showed that “Of every 100 errors, 2 were judged to be potentially clinically important. In five U.S. hospital pharmacies, the observed error rate for compounding i.v. admixtures was 9%.”

Medications and Helpful Tips

The following medication checklist is helpful in reducing, if not eliminating, the number of adverse events:

• There is a process for documenting a complete listing of a patient’s current medications upon admission to the hospital or other facility.

• Attending physician decides which medications should be continued during patient’s stay.

• Handwriting is legible and printed if necessary for readability.

• Felt-tip pens are avoided.

• Orders are clear.

• A zero is added prior to a decimal.

• Abbreviations are avoided except were permitted by hospital policy.

• A process is in place for validating interpretation of illegible medication orders.

• Hold orders are accompanied by a time frame.

• Medications are properly diluted before administering.

• Drugs are safely stored, ordered, and distributed.

• Potentially dangerous look-alike drugs are separated in the pharmacy.

• High-risk drugs are easily identified and standardized when feasible.

• Look-alike medications are repackaged or relabeled, as necessary, in the pharmacy.

• Medications are labeled as to dosage and expiration date.

• Medications are administered at the proper time in the prescribed dosage by the correct route (e.g., IV, intramuscular, oral).

• A complete list of medications is available to the next provider when the patient is transferred from one setting to another (e.g., service, practitioner, or level of care within or outside the organization).

• Upon discharge, the attending physician instructs the patient as to which drugs should be continued or discontinued.

• Risk reduction activities are in place to reduce the likelihood of adverse drug reactions and medication errors.

• There is a mechanism for monitoring the effect of medications on patients.

• Responsibility for ensuring the integrity of crash carts has been assigned.

• There are appropriate medications and equipment on crash carts for treating both children and adults.

• Staff members are appropriately trained in the testing and use of equipment contained in or on the crash cart.

• Staff members who participate in codes are periodically tested for competency.

• A mechanism is in place for approving and overseeing the use of investigational drugs.

• Causes and trends of medication errors are tracked and changes made in the process as necessary to improve outcomes.

• Educational processes have been implemented to reduce the likelihood of medication errors and adverse drug events.

12.10 PHYSICAL THERAPY

Physical therapy is the art and science of preventing and treating neuromuscular or musculoskeletal disabilities through the evaluation of an individual’s disability and rehabilitation potential; the application of physical agents (heat, cold, ultrasound, electricity, water, and light); and the use neuromuscular procedures that, through their physiologic effect, improve or maintain the patient’s optimum functional level. Because of different physical disabilities brought on by various injuries and medical problems, physical therapy is an extremely important component of a patient’s total health care. Physical therapists, therefore, have a legal duty as any other health professional to adhere to an accepted standard of care when providing care and treatment. Negligence occurs when the physical therapist fails to provide rehabilitation or treatment at the accepted standard of care that other physical therapists in similar circumstances would have provided.

Areas of liability concern for physical therapists include: failure to obtain a completed prescription from the prescribing physician, failure to follow physician’s orders or to clarify such orders, aggressive treatment (e.g., use of heavy weights), and treatment burns from hot packs. Adherence to the physician’s treatment plan as prescribed and seeking clarification when necessary, review of patient’s history and risk assessments, preparation of equipment to be used, and observation and feedback from the patient will go a long ways in reducing the number of injuries suffered by physical therapy patients.

Incorrectly Interpreting Physician’s Orders

Pontiff, in Pontiff v. Pecot & Assoc., filed a petition for damages against Pecot and Associates and Morris. Pontiff alleged Pecot and Associates had been negligent in failing to properly train, supervise, and monitor its employees, including Morris, and that Pecot and Associates was otherwise negligent. Pontiff alleged that employee Morris failed to exercise the degree of care and skill ordinarily exercised by physical therapists, failed to heed his protests that he could not perform the physical therapy treatments she was supervising, and failed to stop performing physical therapy treatments after he began to complain he was in pain. Pontiff claimed he felt a muscle tear while he was exercising on the butterfly machine, a resistive exercise machine.

Pontiff’s expert, Boulet, a licensed practicing physical therapist, testified that Morris deviated from the standard of care of physical therapists by introducing a type of exercise that, according to her, was not prescribed by Dr. deAraujo, the treating physician. She stated that Pecot added resistive or strengthening exercises to Pontiff’s therapy and these were not a part of the physician’s prescription. Pecot argued that resistive exercises were implicitly part of the prescription, even if her interpretation of the prescription was not reasonable.

Legally, under Louisiana law, a physical therapist may not treat a patient without a written physical therapy prescription. Ethically, the Physical Therapists’ Code of Ethics, Principle 3.4, states that any alteration of a program or extension of services beyond the program should be undertaken in consultation with the referring practitioner. Because resistive exercises were not set forth in the original prescription, Boulet stated that consultation with the physician was necessary before Pontiff could be advanced to that level. Only in the case where a physician has indicated on the prescription that the therapist is to evaluate and treat would the therapist have such discretion. There was no such indication on the prescription written by deAraujo.

Davis, a physical therapist in private practice and Pecot’s expert witness, testified that the program that Pecot designed for Pontiff was consistent with how she interpreted the prescription for therapy that the physician wrote. Davis, however, did not, at any time, state that Pecot’s interpretation was a reasonable one. In fact, Davis herself would not have interpreted the prescription in the manner that Pecot did. Davis testified only that Pecot’s introduction of resistive exercises was reasonable based on her interpretation of the prescription.

It is clear that Pecot, as a licensed physical therapist, owed a duty to Pontiff, her client. Pecot’s duty is defined by the standard of care of similar physical therapists and the Association of Physical Therapists of America. If Pecot found the prescription to be ambiguous, she had a duty to contact the prescribing physician for clarification. The appeals court found that the trial court was correct in its determination that Pontiff presented sufficient evidence to show that this duty was breached and that Pecot’s care fell below the standard of other physical therapists.

Termination of Contracted Services

The physical therapist in Armintor v. Community Hospital of Brazosport was properly enjoined from entering the hospital’s premises after termination of an oral contract to furnish services to hospital patients in need of physical therapy. Substantial evidence supported the court’s finding that the hospital’s attempt to establish a hospital-based physical therapy program would have been disrupted if the independent therapist had been permitted to continue treating patients. The court considered the exclusion of a therapist an administrative matter within the board’s discretion. The therapist’s entering the hospital without the permission of a staff physician would constitute trespass and would be in violation of hospital policy.

Neglect

In Zucker v. Axelrod, a physical therapist had been charged with resident neglect for refusing to allow an 82-year-old nursing facility resident to go to the bathroom before starting his therapy treatment session. Undisputed evidence at a hearing showed that the petitioner refused to allow the resident to be excused to go to the bathroom. The petitioner claimed that her refusal was because she assumed that the resident had gone to the bathroom before going to therapy and that the resident was undergoing a bladder training program. The petitioner had not mentioned when she was interviewed after the incident or during her hearing testimony that she considered bladder training a basis for refusing to allow the resident to go to the bathroom. It is uncontroverted that the nursing facility had a policy of allowing residents to go to the bathroom whenever they wished to do so. The court held that the finding of resident neglect was supported sufficiently by the evidence.

Physical Therapist License Revoked

The license of a physical therapist was found to have been properly revoked by the Bureau of Professional and Occupational Affairs, State Board of Physical Therapy after the therapist had been disciplined in other states. In New Jersey, the board of physical therapy denied Girgis a license to practice physical therapy. The Michigan Board of Physical Therapy imposed a $1,000 fine on Girgis. The South Carolina Board of Physical Therapy suspended Girgis’s license indefinitely. The New Hampshire Governing Board of Physical Therapy suspended Girgis’s license for 5 months. The Montana Board of Physical Therapy Examiners revoked Girgis’s license. The Medical Licensing Board of Indiana put Girgis’s license on indefinite probation for no less than 2 years and later indefinitely suspended it for no less than 6 months and imposed a $500 fine because Girgis failed to comply with the terms of his probation. The Hawaii Board of Physical Therapy suspended Girgis’s license for 5 months. The Florida Department of Health accepted Girgis’s voluntary relinquishment of his Florida license.

Whether Girgis was incompetent, negligent, abusive, or a risk to patients in Pennsylvania was found to be wholly irrelevant. The sole inquiry is whether his license to practice physical therapy was suspended, revoked, or otherwise disciplined in another jurisdiction. Because he does not dispute that he was disciplined in eight states, the board did not err in disciplining him in Pennsylvania.

12.11 PHYSICIAN’S ASSISTANT

A physician’s assistant (PA) is a medical professional who is a graduate of an accredited PA educational training program and is nationally certified and state licensed to practice medicine with the supervision of a physician. One of the solutions to the shortage of physicians has been to train PAs, as well as nurse practitioners, to perform the more routine and repetitive medical procedures. Physician’s assistants are generally licensed to administer injections, perform routine history and physical examinations, order and interpret tests, diagnose and treat patient ailments (e.g., assist in surgery, suture minor lacerations), prescribe medications, and provide patient education and counseling. A physician may not delegate a task to a PA in those instances where regulations specify that the physician must perform the task or when delegation of a task is prohibited under state law or by an organization’s policies by which the PA is employed.

Jury Awards $3 Million in Malpractice Suit

Sinuses treated with steroids, not antibiotic

But Mr. Del Sole said that the doctors in the office failed to follow the protocol they laid out in employing a physician’s assistant.

On paperwork submitted with the state, Dr. DeGiovanni and Dr. Montini said they would see every patient treated by Ms. Egidi [Physician’s Assistant].

“The testimony was undisputed that that did not happen,” Mr. Del Sole said. “Clearly, the doctor would have treated her differently.”

—Paula Reed Ward, Pittsburgh Post-Gazette, November 24, 2007

Physician’s assistants are responsible for their own negligent acts. The employer of a PA can be held liable for the PA’s negligent acts on the basis of respondeat superior. Guidelines and procedures should be established, as with any professional, to provide a standard mechanism for reviewing a PA’s skills and performance. The reader is encouraged to review applicable laws that regulate a physician’s assistant scope of practice, which may vary from state to state (e.g., Title 16 California Code of Regulations Section 1399.541). Due to the ever-increasing shortage of physicians, the educational requirements and scope of practice for physician’s assistants will most likely continue to expand.

12.12 PODIATRIST

Podiatry is that branch of medicine involving the study of, diagnosis, and medical treatment of disorders of the feet, ankles, and lower extremities. Although the scope of practice is based on a state’s licensing laws, podiatrists generally provide the following services: perform complete medical histories and physical examinations, order and interpret imaging studies, prescribe medications, perform minor surgery and set fractures, prescribe and fit orthotics, and prescribe physical therapy as required. The legal concerns of podiatrists, similar to those of surgeons, include misdiagnosis and negligent surgery. The podiatrist, for example, in Strauss v. Biggs was found to have failed to meet the standard of care required of a podiatrist, and that failure resulted in injury to the patient. The podiatrist, by his own admission, stated that his initial incision in the patient’s foot had been misplaced. The trial court was found not to have erred in permitting the jury to consider additional claims that the podiatrist acted improperly by failing to refer the patient, stop the procedure after the first incision, inform the patient of possible nerve injury, and provide proper postoperative treatment. Testimony of the patient’s experts was adequate to show that such alleged omissions violated the standard of care required of podiatrists.

12.13 RESPIRATORY THERAPIST

Respiratory therapy is the allied health profession responsible for the treatment, management, diagnostic testing, and control of patients with cardiopulmonary deficits. A respiratory therapist is a person employed in the practice of respiratory care who has the knowledge and skill necessary to administer respiratory care. Respiratory therapists are responsible for their negligent acts, and a respiratory therapist’s employer is responsible for the negligent acts of the therapist under the legal doctrine of respondeat superior.

Failure to Remove Endotracheal Tube

The court in Poor Sisters of St. Francis v. Catron held that the failure of nurses and an inhalation therapist to report to the supervisor that an endotracheal tube had been left in the plaintiff longer than the customary period of 3 or 4 days was sufficient to allow the jury to reach a finding of negligence. The patient experienced difficulty speaking and underwent several operations to remove scar tissue and open her voice box. At the time of trial, she could not speak above a whisper and breathed partially through a hole in her throat created by a tracheotomy. The hospital was found liable for the negligent acts of its employees and the resulting injuries to the plaintiff.

Multiple Use of Same Syringe

The respiratory therapist in State University v. Young was suspended for using the same syringe for drawing blood from a number of critically ill patients. The therapist had been warned several times of the dangers of that practice and that it violated the state’s policy of providing quality patient care.

Restocking the Code Cart

Dixon had been admitted to the hospital and was diagnosed with pneumonia in her right lung. Dixon’s condition began to deteriorate, and she was moved to the intensive care unit (ICU). A code blue was eventually called, signifying that her cardiac and respiratory functions were believed to have ceased. During the code, a decision was made to intubate, which is to insert an endotracheal tube into Dixon so that she could be given respiratory support by a mechanical ventilator. As Dixon’s condition stabilized, Dr. Taylor, Dixon’s physician at that time, ordered that she gradually be weaned from the respirator. Blackham, a respiratory therapist employed by the hospital, extubated Dixon at 10:15 PM. Taylor left Dixon’s room to advise her family that she had been extubated. Blackham decided an oxygen mask would provide better oxygen to Dixon but could not locate a mask in the ICU, so he left the ICU and went across the hall to the critical care unit (CCU). When Blackham returned to Dixon’s room with the oxygen mask and placed it on Dixon, he realized that she was not breathing properly. Blackham realized that she would have to be reintubated as quickly as possible.

A second code was called. Shackleford, a nurse in the cardiac CCU, responded to the code. Shackleford recorded on the code sheet that she arrived in Dixon’s room at 10:30 PM. She testified that Blackham said he had too short of a blade and he needed a medium, a Number 4 MacIntosh laryngoscope blade, which was not on the code cart. The code cart is a cart equipped with all the medicines, supplies, and instruments needed for a code emergency. The code cart in the ICU had not been restocked after the first code that morning, so Shackleford was sent to obtain the needed blade from the CCU across the hall. When Shackleford returned to the ICU, the blade was passed to Taylor, who had responded to the code and was attempting to reintubate Dixon. Upon receiving the blade, Taylor was able to quickly intubate Dixon. Dixon was placed on a ventilator, but she never regained consciousness. After the family was informed that there was no hope that Dixon would recover the use of her brain, the family requested that no extraordinary measure be taken to prolong her life.

A medical negligence claim was filed against Taylor and the hospital. The jury found that Taylor was not negligent. Evidence presented at trial established that the hospital’s breach of duty in not having the code cart properly restocked resulted in a 3-minute delay in the intubation of Dixon. Reasonable minds could accept from the testimony at trial that the hospital’s breach of duty was a cause of Dixon’s brain death, without which the injury would not have occurred. Foreseeability on the part of the hospital could be established from the evidence introduced by the plaintiff that the written standards for the hospital require every code cart be stocked with a Number 4 MacIntosh blade. This evidence permits a reasonable inference that the hospital should have foreseen that the failure to have the code cart stocked with the blade could lead to critical delays in intubating a patient. Accordingly, there was substantial evidence that failure to have the code cart stocked with the proper blade was a proximate cause of Dixon’s injuries.

12.14 SECURITY

Hospitals have a duty to implement and maintain reasonable measures to protect patients from the criminal acts of third parties. However, if an attack and injury to a patient is not foreseeable, the hospital’s actions cannot be the proximate cause of the patient’s injuries.

The patient in Lane v. St. Joseph’s Regional Medical Center was sitting in the emergency department waiting room when a teenage boy, D.G., arrived with his mother. After they had all sat in the waiting room for a short period, D.G. walked up to Lane and began to hit her on her right arm and shoulder. Lane’s son-in-law, who had accompanied her to the emergency room, jumped to her aid and struck D.G., knocking him to the floor. The attack stopped, and nothing further happened. Lane suffered some injuries as a result of the attack.

The evidence in this case depicts a situation in which the attack upon Lane by D.G. was unexpected and that no other evidence was designated to the trial court from which it could have concluded that the specific actions of D.G. on the day in question were foreseeable. The court was bound to conclude that the attack and injury were not foreseeable, that the center’s actions were not the proximate cause of Lane’s injuries, and that the center is entitled to judgment as a matter of law.

12.15 CERTIFICATION OF HEALTHCARE PROFESSIONALS

The certification of healthcare professionals is the recognition by a governmental or professional association that an individual’s expertise meets the standards of that group. Some professional groups establish their own minimum standards for certification in those professions that are not licensed by a particular state. Certification by an association or group is a self-regulation credentialing process.

FAILURE TO PROVIDE ADEQUATE SECURITY

Citation: Hanewinckel v. St. Paul’s Property & Liab., 611 So. 2d 174 (La. App. 1992)

Facts

The plaintiff, a nurse anesthetist, arrived at the hospital at approximately 5:25 AM. After parking her car and before she shut off the engine, a man jumped into the driver’s seat and began to drive off. The nurse jumped from the car but her attacker caught her and started to beat her. An employee pulling into the parking lot saw what was happening and alerted security. The plaintiff suffered a broken left wrist, 12 teeth either knocked out or broken, severe bruises on her face, and cuts on her legs and knees. She also suffered mental distress from which she had not recovered.

The nurse sued the owner of the parking lot and the security force for breach to protect her from a criminal attack committed on the premises. The trial court found that the defendant had a duty to provide reasonable and adequate security in the parking area and that it had breached this duty.

Issue

Did the hospital breach a duty by failing to adequately patrol its parking lot?

Holding

The court of appeals affirmed the decision for the plaintiff, finding that the hospital breached its duty to the employee by failing to patrol the parking lot.

Reason

The hospital took on the responsibility of maintaining a security force to cover the parking lot. As such, the hospital assumed liability, giving a warranty that, through employment of a security service, their work would be carried out in a nonnegligent manner. The evidence indicated that other witnesses had seen the attacker in or near the parking lot 5 hours earlier in the day, yet no security personnel spotted him. The court found that the security force breached its duty by negligently failing to provide adequate security, which should have included random patrolling of all of the areas. After the attacker was reported to security earlier in the day, nothing other than a brief walk through the lot was done.

12.16 LICENSING HEALTHCARE PROFESSIONALS

Licensure can be defined as the process by which some competent authority grants permission to a qualified individual or entity to perform certain specified activities that would be illegal without a license. As it applies to healthcare personnel, licensure refers to the process by which state licensing boards, agencies, or departments grant to individuals who meet certain predetermined standards the legal right to practice in a healthcare profession and to use a specified healthcare practitioner’s title. The commonly stated objectives of licensing laws are to limit and control admission to the different healthcare occupations and to protect the public from unqualified practitioners by promulgating and enforcing standards of practice within the professions.

The authority of states to license healthcare practitioners is found in their regulating power. Implicit in the power to license is the authority to collect license fees, establish standards of practice, require certain minimum qualifications and competency levels of applicants, and impose on applicants other requirements necessary to protect the general public welfare. This authority, which is vested in the legislature, may be delegated to political subdivisions or to state boards, agencies, and departments. In some instances, the scope of the delegated power is made specific in the legislation; in others, the licensing authority may have wide discretion in performing its functions. In either case, however, the authority granted by the legislature may not be exceeded.

Suspension and Revocation of License

Licensing boards have the authority to suspend or revoke the license of a healthcare professional found to have violated specified norms of conduct. Such violations may include procurement of a license by fraud; unprofessional, dishonorable, immoral, or illegal conduct; performance of specific actions prohibited by statute; and malpractice. Suspension and revocation procedures are most commonly contained in a state’s licensing act; in some jurisdictions, however, the procedure is left to the discretion of the board or is contained in the general administrative procedure acts.

12.17 HELPFUL ADVICE FOR CAREGIVERS

If we do not hang together, we will all hang separately.

—Benjamin Franklin (1706–1790)

Teamwork is the process of working cooperatively with others. In the healthcare setting, caregivers must work together to improve patient outcomes. The healthcare worker today works in an environment where change is the norm. Technological change is occurring at a pace faster then the human mind can absorb, thus requiring teamwork among individuals with a wide variety of skills sets. The following listing provides some helpful advice that will promote teamwork and improve patient care.

• Abide by the ethical code of one’s profession.

• Do not criticize the professional skills of others.

• Maintain complete and adequate medical records.

• Inform the patient of the risks, benefits, and alternatives to proposed procedures.

• Provide each patient with medical care comparable with national standards.

• Be a good listener, and allow each patient sufficient time to express fears and anxieties.

• Foster a sense of trust and feeling of significance.

• Communicate with the patient and other caregivers.

• Seek the aid of professional medical consultants when indicated.

• Obtain informed consent for diagnostic and therapeutic procedures.

• Do not indiscriminately prescribe medications or diagnostic tests.

• Practice the specialty in which you have been trained.

• Keep patient information confidential.

• Check patient equipment regularly, and monitor it for safe use.

• When terminating a professional relationship with a patient, give adequate written notice to the patient.

• Authenticate all telephone orders.

• Obtain a qualified substitute when you will be absent from your practice.

• Investigate patient incidents promptly.

• Develop and implement an interdisciplinary plan of care for each patient.

• Safely administer patient medications.

• Closely monitor each patient’s response to treatment.

• Provide cost-effective care without sacrificing quality.

• Provide education and teaching to patients.

• Participate in continuing education programs.

The Court’s Decision