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By Jan J. Gorrie, Esq., and Mark K. Delegal, Esq.
Pennington, Moore, Wilkinson, Bell & Dunbar, PA
News: Shortly after an uneventful labor, delivery, and brief hospitalization, a young mother was discharged from the hospital with her newborn. Eleven days after the birth, the newborn was cranky. The new mother gave the child Tylenol and put him to bed. The next morning, she found him dead. An autopsy revealed that the baby died of an undetected hypoplastic heart valve birth defect. Despite a no-fault finding by a medical review panel, the jury found the hospital and its nurses negligent for not diagnosing the condition and awarded the mother $500,000.
Background: The 16-year-old was expecting her first child. The pregnancy progressed without complications, and she went to the hospital full-term for the delivery. Her labor and delivery were unremarkable. During labor and delivery, her principal caregiver was an OB/GYN resident. However, shortly after delivery, the mother reported to the medical and nursing staff that her infant’s limbs appeared blue and purple, and that even when the newborn was bundled for warmth, he had a persistent discoloration.
A neonatologist was consulted. Following his evaluation, the neonatologist told the mother that there were no signs of abnormality with the newborn. Having been medically cleared the next day, the mother and newborn were discharged from the hospital to her mother’s home.
Two days later, the mother and newborn were visited at the newborn’s grandmother’s home by representatives of the hospital’s hospice. The hospital’s hospice service not only provided standard hospice services but also served to make home visits on newborns delivered at the facility. The hospice personnel did not recognize any problems with the child. However, in the evening eight days later, the infant became particularly irritable. The mother gave him Tylenol and put him to bed. The next morning the mother and grandmother found him dead. The mother attempted CPR, but it was unsuccessful.
An autopsy revealed that the child died from complications from an undiagnosed hypoplastic left heart valve, a defect present at birth. Since the infant’s death, the mother married the father of the deceased child and brought suit against the obstetrician, neonatologist, hospital nursing staff, and the representatives of the hospital’s hospice service who examined the infant at home after discharge.
The plaintiff alleged that all of the defendants failed to properly detect the heart defect, resulting in a lack of treatment. Since the jurisdiction employs a medical review panel prior to the initiation of any medical malpractice action being taken, the panel reviewed the case. Even though the panel ruled against the plaintiff, the mother still wanted to go to trial. At trial, the young woman maintained that her repeated inquires into her infant’s discoloration had been ignored, saying that neither the nurses nor medical staff noted the queries in her medical chart or that of the child.
The defense raised multiple issues regarding the infant’s condition while being cared for at the hospital and contested the mother’s recollections of persistent questions regarding the infant’s coloration. The defendants maintained that if it was not noted in the charts, it simply did not happen. In particular, one of the hospital’s nurses charged with the care of the mother and child indicated that she had regularly checked on the infant and found nothing out of the ordinary. The defense further averred that the hypoplastic heart valve was a birth defect that would undoubtedly have proved fatal under any circumstances, and that even if the defect had been diagnosed at the time of hospitalization, it would not have changed the outcome. The defense maintained that this particular heart defect condition was difficult to detect and did not usually manifest clear signs for diagnosis until six to eight weeks after birth.
Despite the medical review panel’s opinion, the jury found the hospital and its nursing staff at fault and awarded the plaintiff $500,000 in damages. The physicians and hospital’s hospice staff were exonerated.
What this means to you: Once the labor and delivery are successfully completed and assuming that there is no breach of the standard of care, all eyes are generally focused on the newborn. And, just as untoward things can happen to the mother, the newborn also may call for attention. "Although many states employ one form or another of a medical review panel, this case clearly indicates that as long as juries are free to ignore the panel’s rulings, plaintiffs will continue to litigate and take their chances with a jury, especially where there are multiple defendants and particularly when you have a baby in the picture," says Ellen L. Barton, JD, CPCU, risk management consultant of Phoenix, MD.
"This case clearly illustrates the ultimate importance of accurate as well as adequate medical records and the necessity to thoroughly explain when and why notations are made in the medical record, especially in the absence of any clearly observable signs and symptoms. Thus, if the form of charting implemented in a particular facility is charting by exception,’ there will be a greater duty to explain that only findings that are determined to be significant to the care of a patient will be recorded.
"Therefore, when charting by exception,’ it might be wise to include in the protocol that a patient’s complaints/questions are to be noted and responded to in the medical record," Barton continues. "Even though there had been a neonatologist consultation and general charting by a nurse that there was nothing out of the ordinary, it was not sufficient enough to completely exonerate the hospital and nurses in this case. Clearly the hospital and nurses would have been in a much better defense posture if there had been notations to the effect that based on the mother’s concerns, the baby had been examined and found to be not discolored. Conversely, it is interesting to note that the hospital’s hospice service was absolved — perhaps this has to do with either more careful documentation or the level of care that was being provided."
"While it is stated that the jury found the hospital and its nurses negligent for not diagnosing the condition, it must be remembered that neither a hospital nor a nurse is actually competent to provide a diagnosis. This finding points out that as part of the facility’s corporate responsibility, a hospital may be found to have a duty to provide appropriate staff and that such staff — such as the nurses in this case — have a responsibility to notify physicians when a patient’s status so indicates," adds Barton.
"Finally, in any evaluation of a medical professional liability case, the sympathetic plaintiff factor must be evaluated. Obviously the plaintiff, despite her age, was able to elicit a great deal of sympathy even though based on the defense expert’s testimony it appears that there was no breach in the standard of care. The young mother, who had to awaken to a dead newborn, which she was unable to revive, certainly fell into that category, even though there was no apparent negligence of the part of the medical team," concludes Barton.