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By Jan Gorrie, Esq., and Mark K. Delegal, Esq.
Pennington, Moore, Wilkinson, Bell & Dunbar, PA
News: A 63-year-old woman with pneumonia was admitted to a hospital and rendered brain damaged before her discharge. The failure to appropriately monitor the level of oxygen she was to have received resulted in acute respiratory arrest and hypoxia, which ultimately led to brain damage. She now requires 24-hour care and ultimately settled with the hospital for $2.7 million.
Background: The plaintiff/patient was admitted to the hospital with what was believed by the admitting physician to have been a simple case of pneumonia. By the time she was transferred from the emergency department to a noncritical-care bed, her condition had deteriorated. Over the course of the next three hours, it seems that the nurse violated the admitting physician’s order to carefully monitor the patient. During this period, the patient nearly went into respiratory arrest and hypoxia due to an inadequate supply of oxygen. As a result of oxygen depravation, the plaintiff suffered permanent brain damage affecting her physical and cognitive abilities. While she can understand general information, she is unable to talk and requires around-the-clock care. In order to keep the patient from being institutionalized, her adult daughter quit working to care of her at home.
The plaintiff brought suit against the hospital, claiming that if the nurse had informed the attending physician of her critical change in condition, she would be healthy and living independently today. The plaintiff also contended that the hospital was woefully understaffed and her condition was not as carefully monitored as ordered by the physician. To illustrate the understaffing point, the plaintiff produced hospital documents and testimony from current and former hospital employees showing that the hospital was purposefully understaffed in order to increase profits. The plaintiff maintained that this purposeful understaffing by design exposed patients to potential injury.
The hospital defendant countered that it was the victim of a nationwide nursing shortage that is affecting all health care facilities. After the motion granting punitive damages was issued by the court, the hospital offered to settle with the patient for $2.7 million contingent upon the plaintiff signing a confidentiality clause. The patient refused to sign the gag order on the grounds that she wanted to convey her story to the media in hopes of pressuring the hospital into taking what the plaintiff believed would be corrective action. Otherwise refusing to settle with the defendant, the hospital conceded and removed the confidentiality clause. The next day, the story was on the front page of the local newspaper and appeared on television.
What this means to you: The national shortage of nurses and allied health professionals has generally placed tremendous pressures on health facilities. Hospitals and nursing homes are being structured to do more with fewer staff.
However, in light of the shortages, purposefully understaffing appears counter to the otherwise creative means institutions are employing to proactively keep the staff they have and actively recruit others.
"The mere fact that there were hospital documents and testimony from former and current staff related to the purposeful understaffing of the hospital to increase profits did not leave the hospital with much of a believable defense. In fact, in most jurisdictions either the state health department and certainly the Joint Commission on Accreditation of Health Organizations [JCAHO] would be expected to investigate and sanction the hospital if these allegations were proven to be true," notes Lynda Nemeth, JD, RN, MS, administrative director of quality and risk management for Norwalk (CT) Hospital. "The defense used by the hospital that it was merely a victim of a nationwide nursing shortage’ is also untenable.
"Under JCAHO and most, if not all, state health department regulations, hospitals are required to have a staffing plan which meets the clinical needs of their patients and a contingency plan when they are unable to meet these demands. One option is to close beds or units when the facility cannot be staffed to provide for safe and effective nursing care.
"The facts of this case appear to be relatively clear cut in that the nurse failed to properly monitor the patient. If the nurse was unable to monitor the patient as per the specific physician orders and intervene when the patient was beginning to deteriorate, the nurse had a duty to the patient to report through the chain of command that she needed help. It is not clear in this overview as to whether the nurse attempted to obtain help and was unable to so, or whether the nurse was negligent in not recognizing how compromised this patient was and taking appropriate action," states Nemeth. "Given the facts in this case, the hospital got off easy if they only had to pay the damages, if the allegations were proven, they would most likely have lost JCAHO accreditation and their license to operate as a hospital."
• Shirley Keck v. Wesley Medical Center, Sedwick County (KS) District Court, Case No. 99C2307.