The plaintiff claimed that she was infected with herpesviral encephalitis and that acyclovir should have been administered as soon as stroke was ruled out by CT.
The defendant physicians claimed that they ordered timely administration of acyclovir but that the hospital failed to administer it. The defendants also claimed that the plaintiff’s symptoms were consistent with several conditions and that a diagnosis was made promptly after testing. The defendants maintained that the diagnosis of herpesviral encephalitis can take days but was reached for the plaintiff in just five hours. The defendants also claimed that the delay in the administration of acyclovir had no bearing on the patient’s outcome, as it takes several weeks of acyclovir administration to kill this virus.
OUTCOME
The hospital settled for a confidential amount shortly before trial. A jury found the hospital and the two physicians negligent, but determined that only the hospital’s negligence caused the plaintiff harm. A $23 million verdict was returned against the hospital.
COMMENT
This is a substantial verdict against the hospital. The physician defendants were found to have breached the standard of care, but no causal relationship was seen between this breach and the damages sustained by the plaintiff. In contrast, the jurors found the hospital’s breach causally related to the plaintiff’s poor outcome.
To obtain recovery on a tort theory of negligence, a plaintiff must prove four elements by a preponderance of the evidence:
• A legal duty to act. This exists any time there is a clinician-patient relationship in a professional setting.
• Breach of the standard of care.
• Harm.
• A determination that the clinician’s breach of the standard of care caused the harm.
These last three elements are generally established and rebutted through expert testimony.
In this case, it is unclear how the jurors came to the conclusion that the physicians breached the standard of care. Presumptively, the jurors may have faulted the emergency physician for ordering the acyclovir without the stat designation; and the infectious disease physician, for taking one hour after consultation to arrive at the patient’s bedside for examination (although this time frame seems reasonable). In the final analysis, however, the jurors did not believe that the five-hour time period from the patient’s admission to diagnosis was causal, but did believe that the three-hour delay from presumptive diagnosis to administration of acyclovir was causally correlated with the patient’s resulting condition.
Under the doctrine of respondeat superior (Latin for “let the master answer”), the hospital is responsible for the action of its nurses. Here, the jury found the nurses’ delay in administering the acyclovir problematic.
When action must be taken immediately in a ward setting, it may or may not be reasonable simply to make a stat designation and expect immediate action. In this case, it may have been useful to communicate directly with the patient’s nurse and explain why timeliness was critical—particularly because a busy nurse may not see a stat order immediately or may not consider the administration of an antiviral medication particularly time sensitive.
This case would have been difficult for the defense attorney. The infectious disease physician’s main defense, that the correct treatment was ordered but not given by the nurse, amounted to finger-pointing among professional defendants. Jurors expect professionals to work as a team and view finger-pointing as an admission of liability.
Further, the hospital’s main point of defense was that the administration of acyclovir was not especially time sensitive, although the attending infectious disease physician behaved at all times as though it was: giving verbal instructions that the acyclovir was required immediately, arriving at the patient’s bedside within one hour, and reiterating the order for acyclovir on a stat basis. This left defense counsel with an uphill road to climb to convince a jury that the administration of acyclovir was not especially time sensitive. —DML
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.