Newborn given overdose of anti-seizure drug

A baby was born by Caesarian section on Sept. 7, 2002, at 38 weeks gestation, after three days of labor induction due to difficulties in the pregnancy.

Two days later, the baby developed seizures with episodes of apnea and was transported to a separate hospital’s neonatal intensive care unit.

Over the next two days, the newborn continued to have multiple seizures with tongue rolling, lip smacking, jerky uncoordinated movements of all extremities and apnea, despite treatment with the anti-seizure drug Phenobarbital. Doctors decided to administer a second medication, Dilantin, in hopes of controlling the seizures.

On Sept. 11, a nurse administered the medication to the baby by vein rather than intramuscularly, as had been ordered by the doctor. The baby developed apnea, mild bradycardia, distant heart sounds, weak peripheral pulses, poor tone, poor perfusion and cold extremities.

He was intubated and placed on a ventilator. His arterial blood gases reflected moderate metabolic acidosis. He received saline for his hypovolemia and hypoperfusion and medications to increase his blood pressure. He responded with an increase in his heart rate and blood pressure. His color, perfusion and oxygen saturation improved as well.

Blood tests showed an elevated level of Dilantin, which gradually went down over a few days. The baby was then taken off the ventilator and was able to breathe on his own, and he was noted to have normal heart, kidney, liver and lung function.

Over the course of the next seven years, the child went on to demonstrate residual cognitive impairment and was diagnosed with autism. The parents claimed the injuries were a result of the Dilantin overdose.

The defense conceded that the baby had been given too much Dilantin but contended that it cleared quickly and the baby suffered no resultant harm. They further contended that the baby was brain-damaged long before the Dilantin episode, as evidenced by abnormal head studies performed prior to the overdose, and that his current condition was entirely unrelated to the Dilantin.

The case settled for $6 million.

Type of action: Medical malpractice

Injuries alleged: Cognitive defects due to overdose of Dilantin

Date: January 2010

Submitted by: Andrew C. Meyer and William  J. Thompson, Lubin & Meyer, Boston

Nurse, midwife fail to expedite C-section

On July 18, 2003, the patient, who was expecting her first child, was admitted early in labor to the hospital with intact membranes. She came under the care of a certified nurse midwife and obstetrical nurse that evening.

For at least four hours prior to delivery, the baby demonstrated fetal heart rate patterns indicative of a worsening fetal oxygenation status, particularly in the final two hours. Neither the nurse nor the midwife monitored the readings or called a supervising physician. The nurse did not check the maternal pulse to assure that the fetal monitor strip was recording the fetal heart rate rather than the maternal heart rate.

Five hours into the mother’s stay, the nurse called the pediatrician, as she realized that she was recording the mother’s pulse instead of the baby’s heart rate for at least 40 minutes.

The baby was born limp and cyanotic with no respiratory effort. She was intubated and transferred to the level II nursery, where she suffered seizures before being transferred to another facility.

She was diagnosed with hypoxic ischemic encephalopathy and status epilepticus. She was transferred to another hospital and stayed there until November, when she was transferred to another facility. She was eventually sent home and remains under the care of her mother.

The parents’ experts were expected to testify that fetal hypoxia was present for a significant period of time prior to delivery and that there is no evidence of any alternative etiology for the HIE. The radiological findings indicate that the injury occurred before delivery.

The child, now six years old, suffers from spastic quadriplegia and significant cognitive, language, communication and motor delays. She will always be dependent on others for her daily activities, including personal hygiene, feeding, dressing and mobility.

The case settled for $4 million.

Type of action: Medical malpractice

Injuries alleged: Hypoxic ischemic encephalopathy, permanent brain injury

Date: November 2009

Submitted by: Philip J. Crowe and Florence Carey, Crowe & Mulvey, Boston

Doctors accused of inserting catheter too forcefully

The patient was a 59-year-old man who had a history of high cholesterol and smoking.

He began to experience cramping in his left calf after walking a short distance and was referred to a vascular surgeon for an evaluation.

He was diagnosed with moderately severe vascular occlusive disease. After a trial of the medication Trental, he had an absent pulse in his left foot. Testing revealed a distal superficial femoral artery popliteal occlusion.

The physician performed a surgical bypass. The plaintiff had had no urinary problems prior to surgery. After the spinal tap was placed, the circulation nurse attempted to place a Foley catheter, without success. The surgeon made a second attempt at passing the Foley catheter and noted in his operative report that it went in without resistance, producing a drop of fluid in the catheter. The 5cc balloon was inflated without resistance and the surgery was performed.

After surgery, the patient did not have any urine output. He was markedly distended and there was blood at the meatus. His rectal exam identified a boggy prostatic area with approximately 30 grams of smooth, benign prostate.

A cystoscopy revealed an area of extreme trauma past the urethral sphincter. No tract was identifiable past the prostatic urethra into the bladder; instead, an unidentifiable tract, through which the cystoscope was negotiated, continued from the bulbar urethra to the rectum. The scope was able to be passed from the urethra out through the anus.

Multiple attempts were made at passing the cystoscope from the penile urethra into the bladder, without success. There was a complete urethral disruption. A transvesical realignment was performed and a connection from the urethra to the bladder neck was re-established.

The patient underwent a procedure to repair the area and was discharged with a colostomy, which was later reversed. He has scars on his leg and abdomen.

The patient alleged that the surgeon and nurse deviated from the accepted standard of care when they used excessive force to insert the Foley catheter.

Both defendants claimed that the catheter was confirmed to be in the bladder before it was inflated because of the feel during the insertion, the length of catheter inserted and the return of urine. They argued that the perforation was a risk of the procedure.

The case settled for $850,000.

Type of action: Medical malpractice

Injuries alleged: Failure to properly place catheter during surgery causing perforated bladder and

resulting urinary problems

Date: November 2009

Submitted by: Elizabeth N. Mulvey and Michael J. Harris, Crowe & Mulvey, Boston

Woman suffers infection years after splenectomy

The patient underwent a splenectomy in 1995. Following the procedure, she received a pneumovax vaccination. She did not receive a Hemophilus or Meningiococcal vaccination.

In April 2001, the patient, then 35, began seeing a new doctor for her primary care. She saw the physician on two occasions and a nurse practitioner on four occasions. Neither of them recommended or administered a pneumococcal revaccination.

The plaintiff developed a pneumococcal infection that required a three-month hospitalization and a two-month stay in a rehabilitation residence. During her hospital admission, the plaintiff became septic, suffered organ failure and necrosis, and had to undergo partial amputation of her toes. She suffers from chronic infection and pain.

The patient contended that considering her asplenia, the standard of care required the defendants to revaccinate her.

The defense team argued that all of the visits were acute sick visits rather than annual preventative and wellness physicals. They claimed that this did not provide them with an opportunity to recommend or administer a pneumococcal vaccination.

The defendants also opined that a pneumococcal vaccination is not the standard of care, is not proven to be effective, would not necessarily have prevented the patient’s variant of pneumococcal infection and had not been recommended by other non-party physicians.

The case settled for $3 million after a second mediation.

Type of action: Medical malpractice

Injuries alleged: Failure to administer pneumococcal vaccine resulting in sepsis, organ failure and necrosis

Date: September 2009

Submitted by: Philip J. Crowe Jr. and Michael J.

Harris, Crowe & Mulvey, Boston

Judge rejects claim of doctors’ indifference  

The patient, a former inmate in the state prison system, filed suit against the University of Massachusetts Correctional Health program, the Department of Corrections and his physicians for constitutional violations.

He contended that his contracted medical providers were deliberately indifferent to his ongoing pain during a one-year delay in hip replacement surgery.

The patient was scheduled to undergo a right hip replacement in August 2005, but his medical providers determined that he suffered from MRSA, precluding surgery.

On Feb. 23, 2006, a doctor at the Lemuel Shattuck Hospital determined that the plaintiff was free of MRSA. A year later, he underwent right hip replacement surgery, followed by physical therapy.

The patient then began to complain about left hip pain. Medical personnel gave him pain medications and his doctors determined in June 2007 that he required a left hip replacement. He underwent hip surgery in October at the same hospital, followed by physical therapy.

The Superior Court found that none of the defendants could be sued for “cruel and unusual punishment.”

It said that during the one-year period from the plaintiff’s clearance from MRSA and his right hip replacement surgery, “the defendants took extraordinary steps to help the plaintiff minimize his pain, and attempted to remedy his serious medical condition, including adjustments in pain medication, diagnostic tests, a medical order to sleep on the bottom bunk, use of security doors to decrease the distance he would have to walk in the prison, room reassignments, stand-up lockers, an egg-crate mattress, crutches, canes, and knee sleeves.”

The court found that the patient was allowed to carry certain pain medications to take them as needed. It ruled that as a matter of law, these actions defeated the plaintiff’s claim of deliberate indifference in violation of the Eighth Amendment.

Type of action: Medical malpractice

Injuries alleged: Eighth Amendment violation

Date: December 2009

Submitted by: James A. Bello and Anthony E. Abeln, Morrison Mahoney, Boston

Woman’s kidney slowly destroyed by forgotten clip

The patient underwent surgery in 1992 to remove her left ureter and ovary, where a tumor had been detected. Approximately 18 months later, she underwent a laparoscopy and lysis of adhesions and biopsy of the right ovary.

The patient subsequently underwent an additional surgery performed by a third doctor, which was an exploratory laparotomy with lysis of adhesions and right ovarian cystectomy and partial omentectomy.

During that procedure, visual inspection of the left kidney revealed that it appeared slightly enlarged. The right ureter was identified and was noted to be away from the surgical area during the operation on the right ovary. There was no mention made of the left ureter at that time.

Nearly 10 years later, the plaintiff underwent a CT urogram to evaluate complaints of left side abdominal pain. The plaintiff was found to have severe hydronephrosis and chronic obstruction of her essentially non-functioning left kidney, likely related to a surgical clip that the woman’s urologist believed was placed “10 years ago.”

At arbitration, the defense maintained that it would have been impossible to clip the ureter in 1992 without the patient having experienced immediate excruciating pain. On cross-examination, the defense expert admitted that one could have a partial obstruction without pain and that a partial obstruction could lead to a total obstruction and kidney failure years later.

The case ended with an arbitration award of $450,000.

Type of action: Medical malpractice

Injuries alleged: Destruction of kidney due to misplacement of surgical clip

Date: October 2009

Submitted by: Gregg J. Pasquale, Melissa A. White and John P. Story, Keches Law Group, Taunton

Jury finds nurses are not responsible for camper’s death

A 14-year-old boy who was spending the summer at an overnight camp for children reported to the camp infirmary feeling faint, looking grey, and with cold hands and an irregular, pounding heartbeat. He felt dizzy while standing and although he felt better upon lying down, his irregular heartbeat was constant.

An hour after arriving at the infirmary the boy went into cardiac arrest. An hour and a half of resuscitation efforts at the camp, in the ambulance and at the hospital were unsuccessful.

The plaintiffs and their experts claimed that earlier intervention and hospitalization would have prevented the cardiac arrest or allowed for resuscitation and recovery.

The nurses contended that the camper died as a result of a cardiac arrest from an unknown underlying heart defect, hypertrophic cardiomyopathy.

They claimed that his medical records indicated he was a healthy boy with no medical issues and his symptoms, including the irregular heartbeat, were not severe for a supposedly healthy boy. They claimed that this was true especially because the boy’s dizziness and color improved when he was lying down; he remained alert, oriented and conversant at all times prior to the cardiac arrest; and he did not have symptoms of chest pain or shortness of breath.

Besides the estate, the plaintiffs were the boy’s sister, who was present when her brother went into cardiac arrest, and his parents, who were at the hospital when he was pronounced dead. The defendants were two nurses at the summer camp.

The demand started at $6 million. At the suggestion of the defense, mediation was attempted but was unsuccessful. The demand never dropped below $3.5 million.

Following a two-and-a-half-week trial that included expert testimony from a cardiologist, an ER physician and multiple registered nurses, the jury deliberated eight hours over two days before returning a verdict in favor of the nurses.

Type of action: Medical malpractice

Injuries alleged: Wrongful death

Date: Oct. 22, 2009

Submitted by: Ethan Warren, Warren, Hensley & Bowen, Boston

Illinois: Med-mal damages cap violates state constitution

A cap on non-economic damages in medical malpractice cases violates the Illinois state constitution, the Illinois Supreme Court has ruled.

The case involved an infant who suffered severe permanent injuries due to medical malpractice at her birth.

The plaintiffs challenged the state’s statutory cap on non-economic damages, arguing that the infant sustained disabilities that will “greatly exceed the applicable limitations on non-economic damages.”

A trial court held that the cap violated the Illinois Constitution, and the state supreme court agreed.

“[T]he General Assembly’s authority to ‘alter the common law’ … is not absolute; it must be exercised within constitutional grounds. … [T]he legislature’s attempt … to limit common law damages in medical malpractice actions runs afoul of the separation of powers clause.”

Iowa: Medical expert can’t testify about cold medicine

A medical expert cannot testify in a products liability case that prescription cold medicine containing phenylpropanolamine (PPA) causes brain injury, the Iowa Supreme Court has ruled.

The plaintiff ingested “Aquatab C” and immediately felt pain in his head and numbness on his left side. In ensuing years he saw a battery of doctors for pain in virtually every part of his body, but no neurological abnormalities were found in CT or MRI scans, and stroke was ruled out.

He sued the cold medicine manufacturer for products liability and hired an expert who would be the only person at trial to testify that PPA causes brain injury.

But the Iowa Supreme Court said that his testimony was not reliable to show causation.

“[The doctor] used one case-control study… in his general causation analysis. The study concluded that PPA was likely to cause hemorrhagic stroke in women, but … in men showed no increased risk. … [He] reasoned from this study [that] PPA can likely cause stroke and since [the plaintiff] likely suffered a ‘stroke-like event,’ this study tended to show a relevant causal connection. This study is simply not relevant to the case before us. It excludes men and … does not describe an injury following PPA ingestion called ‘stroke-like event’ … [and] as such … cannot be the basis of any general causation opinion,” the court said.

Further, “[s]pecific causation in toxic-tort cases examines whether the toxin at issue could have reasonably caused plaintiff’s specific alleged injuries. … Since [the plaintiff] has failed to reliably show [that] PPA is an external factor to be ‘ruled in’ to a differential causation diagnosis, it follows he cannot establish PPA caused his specific injuries.”

Iowa Supreme Court. Ranes v. Adams Labs, No. 06-1428. Feb. 5, 2010.

Oklahoma: Consulting physician not liable for malpractice

A physician-patient relationship is an indispensable element of a medical malpractice claim and therefore a doctor who was consulted about a plaintiff’s pregnancy can’t be sued, the Oklahoma Supreme Court has ruled.

The plaintiffs filed a medical malpractice claim against a non-treating physician who had a conversation with the treating physician concerning the plaintiff’s history and complications.

The plaintiffs claimed that based on the non-treating physician’s advice, the treating physician caused their daughter to be delivered prematurely, resulting in serious injuries.

The non-treating physician said that although he gave the treating physician his “informal” opinion, he was never asked to co-manage the mother’s case.

The court held that the defendant could not be held liable because no physician-patient relationship existed.

“[The defendant] did not render medical advice to the plaintiffs; did not provide services to the treating physician on behalf of [the mother or baby]; did not receive a referral of [the mother or baby] for treatment or consultation; was not employed by [the treating physician] and had not been asked or contracted … to provide medical treatment to [the mother or daughter]; and had not reviewed any work, conducted any laboratory tests, reviewed any test reports, prepared any reports, or billed the plaintiffs. …

“Further, none of the plaintiffs agreed that [the defendant] could treat [the mother or baby]. Even though [the treating physician] chose to rely on [the defendant’s] opinion, [the treating physician] was free to exercise his independent judgment,” the court said.

It concluded: “The facts before us fail to show that [the defendant] agreed to treat the plaintiffs or undertook treatment of any of the plaintiffs. Thus, there was not the physician-patient relationship necessary for a medical malpractice action.”

The court cited similar rulings from other jurisdictions.

Oklahoma Supreme Court. Jennings v. Badgett, No. 105745.  Feb. 9, 2010.

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