Articles Posted in Hospital Malpractice

Serratia marcescens outbreaks are rare. When they happen, it is a big deal. Here are the eight things you want to know about these infections that often end in medical malpractice cases.

  1. What is Serratia marcescens?

Serratia marcescens is an opportunistic nosocomial pathogen. This bacterial pathogen has been isolated from several human clinical specimens and some non-human sources. It naturally occurs in soil and water and is commonly found in soil, water, and the digestive tracts of humans and animals. It produces a distinctive red pigment, sometimes used in scientific experiments as a visual marker.

One obvious malpractice claim in some hospital cases is negligent credentialing. These claims typically allege the hospital should have suspended or revoked the doctor’s privileges or should have monitored and supervised the doctor more closely. This is also known by its legal term, “Why did you let this idiot in your hospital, anyway?”

Maryland law arguably gives hospitals some leverage to fight these claims with its medical review committee privilege. Maryland’s statute, enacted in 1976, provides that “proceedings, records, and files of a medical review committee are not discoverable and are not admissible into evidence in any civil action arising out of matters that are being reviewed and evaluated by the medical review committee” in any civil action.

The hospital uses this privilege as a sword, claiming that it can’t defend itself because it cannot use this evidence at trial. But almost every state has a medical review committee privilege and still, most states allow for negligent credentialling claims. Ultimately, it is a false argument because the vast majority of negligent credentialling cases, the issue is “what did they know and when did they know it?” So the parties are on a level playing field in a medical malpractice lawsuit: the privilege prevents the introduction of what the peer review committee saw but the information that was presented – assuming it was available elsewhere which it must have been if it is at issue, is fair game. What the peer review committee thought does not really matter either way. In other words, if the jury question was whether the batter was safe or out and you have video, it does not matter what the umpire’s call on the field was at the time.

Tragic story here about a lieutenant from a Sheriff’s Department who was severely incapacitated after he underwent bariatric surgery in 2007. The details of his care and treatment are appalling.

After being told that a weight-loss surgery would be “less risky” than continuing to live in his physical state (he was 6’1″ and 375 lbs), a once active and contributing member of society now remains confined to a wheelchair, brain-damaged and blind, but completely aware of what he once was and what he is now.

How could this happen you might ask? Well, when your surgeon is unaccredited and has performed less than half of the required number of surgeries to become accredited, you find yourself with a major case of malpractice. Furthermore, the surgeon was required to have at least twenty hours of bariatric education courses, yet he had only taken one.

One frequent emergency room complaint is abdominal pain of unknown origin. The challenge for the ER doctor is to diagnose the source of the problem, or at least narrow the problem, and rule out life-threatening aliments. Three big potentials for problems are appendicitis, volvulus, and ruptured abdominal aortic aneurysm and intussusception – all can lead to misdiagnosis and wrongful death malpractice lawsuits. Today, we will look at appendicitis misdiagnosis claims.

Failure to diagnose an appendicitis is a common failure. It is critical to immediately remove an inflamed appendix before it ruptures. If a patient walks in with an inflamed appendix and walks out before getting the proper treatment – usually removal – they are put at risk of death. Particularly at risk for an appendicitis and a missed diagnosis is our youngest and oldest. The classical appendicitis presentation includes patients with low-grade fevers with crampy, intermittent abdominal pain that gets worse with movement that migrates to the right lower quadrant of the stomach within 12–24 hours of the onset of symptoms.

Some emergency room doctors miss even the obvious diagnosis in patients most at risk. There are medical malpractice cases where the patient could just have well come in the emergency room with an “I have an inflamed appendix” shirt and the ER doctor still blows it. But the standard of care also requires ER doctors to catch more than just the fly balls. For moderate-risk patients that have some, but not all of the classic appendicitis symptoms, doctors really do need to order more follow-up diagnostic testing. Call it defensive medicine, call it whatever you want, but if it looks like it could be an appendix problem, it’s worth getting a CT scan.

Most hospitals have three categories of doctors practicing medicine in their hospital: (1) a doctor who has privileges at that hospital; (2) salaried employees and (3) independent contractors. In emergency rooms in Maryland, most of the doctors that are providing treatment are independent contractors.

Of course, patients don’t know this. In fact, if you polled members of the Maryland State Bar Association, I think you would find the average Maryland lawyer does not know this either. So the question is can the hospital hide behind its independent contractor relationship with the ER group? The question hinges on whether malpractice lawyers can hold hospitals vicariously liable for its contractors’ negligence under the theory of ostensible/apparent agency. Certainly, hospitals argue for the application of the rule that it should be absolved of liability because the ER doctors are independent contractors over who it has no control.

Maryland follows the apparent agent theory set forth in the Second Restatement of Agency. Section 267 says that:

Medical malpractice is largely a zero-sum game. If it helps the defendant’s lawyer, it helps the plaintiff’s lawyer. We all pretend from time to time this is not so. But it is almost invariably true.

The question of whether to name doctors in a hospital malpractice case is one of those situations where it is best for everyone to keep the doctors out of the lawsuit. (Sure, maybe the public censure of a doctor through a civil lawsuit has value. But, ultimately, our job is to do right by our clients by maximizing the value of their malpractice case.) Plaintiffs’ lawyers prefer to name a hospital, which is far less sympathetic than an individual doctor. It gives juries the opportunity to award fair damages without the pain of directly blaming a specific doctor (even in cases where obviously it was a single doctor’s fault). The doctor’s lawyer – even if the lawyer also represents the hospital – gets that a doctor does not want to have her name in the lawsuit.

Everyone’s happy. One problem: the general release of a doctor operates as a matter of law to release the defendant from liability. And you don’t want to use the procedural leverage you have with a defendant doctor in terms of reading deposition testimony at trial, etc.

This is not a space to praise the virtues of malpractice insurance companies. But let’s give credit to Crico/RMF a malpractice insurance company which insures Harvard-affiliated hospitals. Crico/RMF, according to the Wall Street Journal, put on an emergency medicine leadership summit to identify the critical factors that cause missed or delayed diagnoses of patients in the emergency room.

How did they do this? They looked at settled malpractice lawsuits and tried to breakdown what went wrong. They found that doctor-nurse communication breakdowns often happen at a critical juncture in a patient’s treatment. From this, they put together a list of best practices that hospitals can use to prevent misdiagnosis.

One problem focused on at this ER summit was the concept that doctors have a hard time changing their initial diagnosis when facts are uncovered that should take the doctors in a different direction. Doctors are stubborn to change their diagnosis. But it is not just doctors. It is a cognitive bias we all have. (I’ve written before about how before lawyers use anchoring at trial.) But the key for doctors is identifying the bias so they can confront it before it leads to the wrong diagnosis.

I’m a big fan of the law of unintended consequences. Here’s one: better medical care because of a bad economy.

Why? I’m glad you asked. The economic downturn has helped the quality of nursing. During good times, every nurse (and their mother) was selling real estate on the side or involved in some other economic opportunity that provided economic growth. So nursing vacancies were high. In today’s economy, nurses are losing those opportunities and are retreating to the hospitals and nursing homes, which increased the number of full-time permanent nurses. This is cheaper for the hospitals and allows them to be choosier about the nurses they pick, immediately improving patient care.

Does a bad economy really decrease incidence of medical malpractice? I don’t know. I’ll leave that to the Freakanomics guys and their progeny. I just think this is interesting.

In Maryland hospital malpractice lawsuits, the Court of Appeals has followed the apparent authority theory of agency. Under this theory, if a Maryland hospital represents that a doctor is its servant or agent and thereby causes a patient to justifiably rely upon the care or skill of that doctor, the hospital is subject to liability to the patient for the doctor’s medical malpractice. The Maryland courts have historically understood that it would be unreasonable to expect that an emergency room patient, with no understanding about the business of how hospitals are set up with respect to independent contractors, should have to inquire as to whether the doctor is an employee of the hospital.

When a malpractice lawyer in Maryland brings a vicarious liability claim against a hospital, it typically includes claims of failure to develop or follow policies and procedures that could have avoided or limited the plaintiff’s injuries from the malpractice. Lawsuits against Maryland hospitals also include, where appropriate, claims that the hospital negligently failed to properly train the agents or servants responsible for the negligence. Another potential claim against the hospital, although it applies less frequently, is negligent credentialling, which means the hospital was negligent in allowing the doctor (or nurse) to work in the hospital.

If you are bringing a malpractice claim against the doctors and the hospital in Maryland, it is often wise to determine if there was a corporate entity that employed the defendant doctors. This may provide additional insurance coverage for claims that are not available against the hospital and give the jury a corporate defendant to make it feel better about a plaintiff’s verdict.