By: Keith Jackson
RILEY & JACKSON, P.C.
National Business Institute Seminar
Birmingham, Alabama
December 12, 2008

For this seminar, we have been asked to discuss a variety of themes and defenses in medical malpractice cases with contextual references to actual cases our firm has investigated or handled. Although every malpractice action differs materially from past cases, common themes and defenses run throughout these cases in several general areas of subject matter. For this seminar, we will consider three substantive areas of malpractice allegations: (1) A failure or delay in ruling out serious or life-threatening conditions; (2) a failure to act on abnormal test results; and (3) a failure or delay in calling a physician to report significant changes in a patient’s condition.

A. FAILURES OR DELAYS IN RULING OUT SERIOUS

The initial and perhaps most critical question to ask when evaluating a potential medical malpractice case based upon a failure or delay in ruling out a serious of life threatening condition is whether the physician failed or delayed in diagnosing the condition because (a) the signs and symptoms of the condition were extremely subtle, confusing, consistent with another more common condition, or in some cases absent, or (b) the physician failed to implement an appropriate differential diagnosis and rule out potentially severe or fatal conditions in the appropriate order and manner. As one simple example of the former, we have evaluated a few cases where a patient died of an abdominal aortic aneurysm (“AAA”). The abdominal aorta is the area of the aorta after it passes the diaphragm and continues down the abdomen. It ends where it divides to form the two iliac arteries that go to the legs.

Aortic aneurysms can develop anywhere along the aorta, but the majority develop on the abdominal aorta. The diagnostic difficulty with AAA is two-fold. First, most AAAs are asymptomatic. They may not be discovered unless they are found incidentally by an abdominal ultrasound or CT scan ordered for other conditions. Second, when AAAs are symptomatic, the most common symptom is pain. Pain associated with a AAA will often be felt in the chest and abdomen and feel as if it continues through the chest wall to the back. The pain is generally felt most prominently in the middle of the abdomen. In other words, AAA signs and symptoms can present similarly to the signs and symptoms of an MI.

Every emergency room physician with whom we have spoken when evaluating AAA cases sings the same tune – when a patient presents to the emergency room with chest pain, the standard of care is to rule out and provide initial treatment for a possible MI first before considering AAA in the differential. This seems to be based upon the fact that MIs are far more commonly the underlying cause of chest/abdominal pain in patients who present with the pain to a physician. In the few AAA cases we have considered, the results of our investigation indicated that the physician had appropriately formulated a differential diagnosis and was in the process of ruling out and providing initial treatment (aspirin, O2, etc.) for an MI when the AAA ruptured and the patient died.

Consequently, we determined that these were situations in which the patient’s signs and symptoms were also consistent with another more common condition, and a medical malpractice action was not warranted.

In contrast, many delays or failures in diagnosing serious or potentially fatal conditions are directly attributable to physician error. By focusing on the differential diagnosis, the medical malpractice practitioner can get a pre-filing glimpse into the physician’s thought process and approach when confronted with the signs and symptoms the patient was exhibiting. Among the more common serious conditions that are not timely diagnosed are cancer, pulmonary embolism, bacterial meningitis, and bowel perforation. The consequences of a failure to diagnose these conditions will depend on the severity of the overlooked disease or condition. When a serious condition such as cancer, appendicitis, or bowel perforation goes undetected, the result can be death.

The key to investigating a case in which a failure or delay in diagnosis may have led to the harm is understanding the signs and symptoms typically associated with the underlying condition. Without this elementary knowledge, no meaningful investigation can occur. Once you have undertaken your own research or met with an appropriate consultant to ensure you have a working familiarity with the condition and how it typically presents, you can then consider how the physician formulated and implemented his or her differential diagnosis.

Many of the failure to diagnose or delay in diagnosis cases we have handled concerned facts that illustrate the importance of the differential diagnosis. On October 1, 2008, an Etowah County jury returned a medical malpractice verdict in our client’s favor and against a physician for $3,250,000. The jury returned this verdict despite being told by defense counsel that we had previously entered into pro tanto settlements totaling $1,000,000. The case turned on the defendant physician’s delay in ruling out a serious cause of our client’s signs and symptoms, and the case further reveals how a series of errors can lead to such a delay.

On Monday, October 4, 2004, Tim Aaron walked into a Rapid Care in Ft. Payne, Alabama complaining of back pain and leg weakness. A physician at Rapid Care arranged for Mr. Aaron to be transferred by ambulance to BMC DeKalb. When Mr. Aaron was assessed at BMC DeKalb, he was told he needed to be transferred to a hospital with a neurologist. Defendant Dr. Just, a neurologist with privileges at Riverview Regional Medical Center in Gadsden, accepted Mr. Aaron as a patient, and Mr. Aaron was transferred to Riverview by ambulance. Dr. Just admitted Mr. Aaron to Riverview.

Dr. Just ordered stat lumbar and thoracic MRIs, which were done on the evening of October 4, 2004. A radiologist read the thoracic MRI report during the night at his home computer by teleradiology. The radiologist hand wrote “negative” for the thoracic MRI report and faxed the report to the hospital floor where Mr. Aaron was located. Dr. Just testified that he received and relied upon the negative thoracic MRI report faxed by the radiologist.

The radiologist testified that his practice’s standard procedure was for the radiologist to go to the hospital each morning and look at the original films for any MRIs he had read by teleradiology. When the radiologist looked at the thoracic MRI film for Mr. Aaron on the morning of October 5, 2004, he realized he had missed what appeared to be a four level lesion on Mr. Aaron’s thoracic spine that was compressing Mr. Aaron’s spinal cord. This compression was obviously the most likely cause of Mr. Aaron’s signs and symptoms, and it represented a surgical condition. The radiologist immediately dictated a priority MRI report, which was quickly transcribed. Once the transcriptionist entered the thoracic MRI report into the system, the report automatically printed at the nurses’ station on the floor where the patient was located and was faxed to the ordering physician’s office, assuming the system worked properly.

Although the radiologist dictated the thoracic MRI report on a priority basis on the morning of October 5, he did not call or page Dr. Just to notify Dr. Just of the error on the handwritten report that said “negative”. Rather, the radiologist relied upon the Riverview Regional computer system to deliver the report automatically to Dr. Just’s office and to the nurses’ station on the 6th floor, where Mr. Aaron was located. A Riverview document indicated that the report had been sent to the floor, but Dr. Just and Riverview’s nurses who were working on the 6th floor testified that they never saw or received the report and, if they had, it would have been placed in Mr. Aaron’s chart.

The radiologist’s failure to call Dr. Just with the amended report, thereby notifying Dr. Just of the serious condition, was an allegation of malpractice included in the case. We also named Riverview Regional Medical Center on the basis that, if the amended report was printed at the nurses’ station, and we have every reason to believe it was, the nurses breached the nursing standard of care by failing to notify Dr. Just of the contents of the report.

Because of certain evidentiary issues that were becoming problematic during the case, we resolved the case with the radiologist and the hospital on a pro tanto basis. This left only Dr. Just, against whom we tried the case before a jury.

After Dr. Just received the handwritten “negative” report for Mr. Aaron’s thoracic MRI, he never again considered a spinal lesion for Mr. Aaron despite Mr. Aaron’s signs and symptoms. He saw only a handwritten word, but he never looked for the comprehensive, dictated report. He never looked at the film. He never called the radiologist to ask what specifically the radiologist was seeing given that a negative thoracic MRI was inconsistent with his patient’s clinical presentation. If Dr. Just or the radiologist had performed such a simple act as making a phone call, the lesion would have been diagnosed promptly.

Mr. Aaron remained under Dr. Just’s care until October 7, 2004. On that date, a second radiologist was preparing to perform a lumbar puncture ordered by Dr. Just when the radiologist looked at Mr. Aaron’s thoracic MRI and realized that Mr. Aaron had a thoracic lesion that appeared to be an epidural hematoma. This second radiologist called Dr. Just and asked if Dr. Just wanted to go forward with the lumbar puncture given Mr. Aaron’s thoracic lesion. Dr. Just responded that he was unaware of the lesion, canceled the lumbar puncture, and began making arrangements to transfer Mr. Aaron to a neurosurgeon.

Mr. Aaron was transferred on October 7 to BMC Montclair, now Trinity, where Dr. Ben Fulmer performed a spinal decompression surgery. Mr. Aaron in fact had an epidural abscess, which differs from an epidural hematoma only in the sense that an abscess is infection whereas a hematoma is blood. Dr. Fulmer decompressed Mr. Aaron’s spine and removed the pressure from the abscess, but it was too late. Mr. Aaron is now a paraplegic and has no use of his legs, bowel, or bladder. Because of errors made both by the radiologist and by Dr. Just, and potentially errors made by the hospital, Mr. Aaron’s epidural abscess was not diagnosed and surgically decompressed in a timely manner, and that delay had devastating consequences.

Dr. Just’s lack of an appropriate differential diagnosis was a key fact in this case. Indeed, Dr. Just did not document a differential diagnosis anywhere in the chart. If Dr. Just had documented an appropriate differential diagnosis, and if he could have established to the jury that he followed his differential diagnosis in a logical order, the outcome at trial very well may have been different. This is the argument he attempted to make at trial, but he had no documentation he could show the jury to support his testimony. In fact, he did not dictate his history and physical until 6 months after Mr. Aaron was transferred out of Riverview Regional, which is clearly at odds with the 24 hour requirement established by the Joint Commission.

In another case we handled in which one issue was a delay in ruling out a serious cause of our client’s clinical presentation, the breaches in standards of care occurred at two different facilities. On October 10, 2002, Jalen Carroll entered Marshall Medical Center South’s emergency room for treatment of a seizure. One of the nurses began to administer phenytoin sodium, an anti-convulsant marketed under the name Dilantin. Dilantin is a known caustic medication, and its infusion must be monitored closely.

The nurse placing the IV catheter inappropriately placed the catheter into Jalen’s radial artery. The nurse infusing the medication failed to catch this error, and the medication infused into Jalen’s radial artery. Jalen’s father noticed that a rash was forming on Jalen’s wrist, and he notified a nurse. The nurse told him that such a rash with Dilantin is a known side-effect.

The emergency room physician appropriately arranged for a transfer to a hospital with pediatric critical care capabilities for continued treatment of Jalen’s seizure condition. The critical care transport nurse noted in his record that he noticed that Jalen’s left arm had become discolored. He also noted he was told by a nurse at Marshall Medical Center that Jalen’s arm began to become discolored after the Dilantin began to be administered.

When Jalen arrived art the second hospital’s emergency room, a pediatric resident assessed him. The resident stated that she believed there was a strong possibility that the IV used to administer Dilantin had been placed into an artery. She testified that she knew there was a possibility that there was arterial damage to Jalen’s arm, and that after making these observations, she contacted her attending physician. Jalen presented to the second hospital in the middle of the night, and the attending physician was at home.

The resident testified during the case that she told the attending physician by telephone that she had concerns over Jalen’s “weak pulse” and that she believed that it was possible that a nurse had injected Dilantin into Jalen’s artery. The attending physician did not come to the hospital to assess Jalen and did not order a vascular consult at that time. Rather, she told the resident to wrap Jalen’s arm in a warm compress.

Although all of this was occurring during the night, the attending physician did not personally assess Jalen until approximately 11:00 a.m. the following morning. At that time, the attending physician finally appreciated what had happened when she saw clear evidence of tissue necrosis. She ordered a consult by a hand surgeon at that time, a sympathetic block was performed on the arm, and other appropriate interventions that should have been ordered during the night were finally ordered and implemented.

Because of the delay in diagnosing this condition both by medical care personnel at Marshall Medical Center South and at the second hospital, Jalen suffered irreversible damage to his left arm. He ultimately underwent an amputation of his left arm, a tragedy that was amplified by the fact that Jalen had never used his right arm. Jalen had limitations to his right arm because of cerebral palsy. Even after extensive physical therapy on Jalen’s right arm following the amputation of his left arm, Jalen remained severely limited in what he could do with his hand. The evidence in the case established that, even with Dilantin having been administered into Jalen’s left radial artery, the permanent damage and amputation could have been avoided if this serious condition was recognized in a timely manner.

We again saw the lack of an appropriate differential diagnosis in this case. Additionally, the primary diagnosis on the differential should have been possible arterial compromise with possible resulting tissue necrosis. If this potential diagnosis had been fully explored and addressed, the physicians would have discovered the ongoing injury to Jalen’s radial artery. By focusing on a physician’s differential diagnosis when a serious or potentially fatal cause of signs and symptoms was not timely addressed, a malpractice attorney can begin a thorough investigation into what exactly occurred and whether the failure to diagnose the condition was truly malpractice or was simply an appropriate exercise of physician judgment.

B. FAILURES TO ACT ON ABNORMAL TEST RESULTS

Some overlap exists between common themes and defenses in cases involving a failure to act on abnormal test results and a failure or delay in ruling out a serious or life threatening cause. A notable difference, however, is that cases involving the failure to act on abnormal test results generally lack the differential diagnosis component for the attack or defense. Physicians can formulate comprehensive differential diagnoses and can logically and appropriately proceed with ruling out the diagnoses in the appropriate order, yet fail to act as required by the standard of care when test results are abnormal.

The U.S. Department of Health and Human Services’ Agency for Healthcare Research and Quality (“AHRQ”) publishes a Research Activities newsletter. In February, 2005, the AHRQ published AHRQ publication No. 05-0052. Included in this publication was an entry of research activity on “Clinical Decision Making”. The sub-heading for the entry was “following up on abnormal test results is challenging for busy doctors who view hundreds of results a week.”

According to the research entry, some physicians review as many as 800 pieces of chemistry or hematology data, 40 radiology reports, and 12 pathology reports each week. The entry makes note of a recent survey, in which 83% of doctors responded that they had reviewed at least 1 test result in the preceding two months about which the doctor wished he or she had known earlier. Almost 20% of the physicians responding to the survey indicated that this type of delay had occurred 5 or more times during the previous two months.

The research entry further elaborates that physicians spend an average of 74 minutes each day reviewing test results, informing patients about results, and developing follow up plans. Nonetheless, only 41% of physicians responding to the survey were satisfied with how they managed test results. Only 52% of those physicians indicated they keep a record of tests ordered, and only 32% reported having a system to detect whether a patient had missed a test. For a full discussion of this research, you can pull the article, which was published in the Archives of Internal Medicine on November 8, 2004 and was written by Dr. Eric Poon and others entitled “I Wish I Had Seen This Test Result Earlier!”

The scenarios within which a physician may fail to appreciate an abnormal test result and may fail to act on those results appropriately and in a timely manner are too numerous to list and may indeed be to numerous to imagine. Most of the examples we have seen in our practice occur acutely with negative consequences that appear very quickly. For example, we handled a nursing home case in Georgia in which a nursing home resident was showing signs and symptoms of a urinary tract infection. A urinalysis was appropriately ordered, and the sample was taken in a timely manner. The lab did not pick up the urine sample on the day the sample was taken for some reason, however, and it remained in the facility’s refrigerator over the weekend.

On the following Monday, the testing laboratory retrieved the urine sample, tested the sample, and returned its report. The report indicated that the resident did not have a urinary tract infection. The report also clearly indicated on its face, however, that the results were invalid for various reasons. The specific gravity of the urine sample was noted to be 1.00, which is the specific gravity of water. This finding standing alone would invalidate any report from the urine sample. The pH of the urine was also indicative of a degraded urine sample.

Despite these clear indications that the lab report was abnormal and that the urine sample that had been tested had degraded prior to testing, the physician did not order a second urinalysis. Consequently, the resident was allowed to continue with her urinary tract infection for over two weeks. This resident ultimately became septic and died. The bacteria source underlying her sepsis was proteus mirabilis, a gram negative, anaerobic bacterium. What made this case particularly tragic is the fact that proteus mirabilis is generally vulnerable to most routine antibiotic therapy. This resident’s death easily could have been avoided if the abnormalities on the urinalysis report had been recognized and appropriate follow up measures had been taken.

One area to which a plaintiff must pay particular attention when considering how a physician responded to abnormal test results is what procedure the physician had in place at his or her office for receiving and evaluating results of ordered tests. Because of the demands put on a physician’s time with seeing patients, making rounds, reviewing reports, etc., many physicians will have a designated staff member responsible for intake and initial evaluation of test results. If the physician has designated a staff member to evaluate test results and the staff member is not qualified to do so, this may be another area where malpractice should be alleged in the Complaint.

One of the clearest examples we have seen of a physician breaching the standard of care by designating an unqualified staff member to evaluate test results occurred in the Timothy Aaron case discussed above. As discussed earlier in this paper, Riverview Regional Medical Center had a computer system in place that met the requirements set forth by the Joint Commission. Once a report was entered into the system, it printed at the nurses’ station on the floor where the patient was located for in-patients as well as at the physician’s office. Dr. Just had designated a staff member who was responsible for receiving and reviewing all reports for Dr. Just’s patients.

This staff member testified that Dr. Just not only delegated this responsibility to her, but he also asked her to notify him of the result only if the test report was abnormal. As a thoracic MRI report was at issue in that case, the question became whether this staff member was qualified to determine whether an MRI report was normal or abnormal. Pursuant to the testimony we obtained in the case, if the report was normal, it would go into a file and would not be seen by Dr. Just unless the patient came into the office after being discharged from the hospital. If the test report was abnormal, the staff member would call Dr. Just and notify him. In other words, Dr. Just was not made aware that normal test results had come into his office.

The staff member in Dr. Just’s office who was responsible for determining whether reports were normal or abnormal was a Medical Assistant. She had completed one year of school to become a Medical Assistant. A portion of the curriculum she completed was targeted at teaching her how to handle administrative functions of her job. Both Dr. Just and his neurologist expert agreed that determining whether an MRI report is normal or abnormal calls for a medical diagnosis. Dr. Just and his staff member also both agreed that the staff member was not capable of making a medical diagnosis. Based upon our discussions with the jury after the verdict was rendered, most of the jurors had serious concerns about this system adopted by Dr. Just, and they were critical of Dr. Just designating the responsibility of determining whether a report was abnormal or normal to a medical assistant who could not make medical diagnoses.

A common defense in cases involving a failure to act on abnormal test results will be for the physician to point the finger at another person or institution involved in the process of relaying the test results. To counter this defense, the plaintiff not only has to establish what the procedure was at the physician’s office for having test results reviewed, but the plaintiff must also establish during discovery that the physician fully appreciated the significance of the test results, else the test would not have been ordered. No physician is going to deny that the results for an ordered test are significant to the physician as part of his or her assessment and plan for the patient.

Once the physician is committed to the fact that he or she knew that the test results were significant for the patient and that receiving and evaluating the test results was an important step in planning the patient’s care, establishing the next link in the chain will be significantly easier. Given that the physician knows he or she has ordered the test and knows that the test results are important for the patient’s care, a jury will be more likely to believe that the physician had the obligation to seek out the test results even if they are not readily made available to the physician. This is exactly what the jury in Etowah County in the Timothy Aaron case found, even in the face of a normal initial test result for the thoracic MRI.

The more technical cases involve situations in which the physician was admittedly made aware of the test result but did not follow up on the test result or order additional testing. Mammograms are one of the more common areas in this field of malpractice. We have seen several situations in which a physician was made aware of a marginal mammogram result. The common procedure at that point is to recommend that the patient have a follow up mammogram in approximately 6 months. We have seen instances where the physician moves forward with a physician order for a follow up mammogram to occur in six months, and the patient complies with that order. Because of the time delay, however, the physician does not remember the patient and does not fully appreciate the significance of the test result when the result arrives. It would only be by going back to the patient’s chart and comparing the second report to the earlier marginal report that the physician could make a thorough analysis as to what the appropriate next step for the patient would be.

When initially evaluating a potential medical malpractice case based upon a failure to act on abnormal test results, it is very important to explore both of the potential areas discussed above. While it is tempting to focus on what was done after the test was reported, limiting an investigation into subsequent action potentially precludes an attorney from considering potential malpractice with respect to the system the physician has in place for receiving the test results. To get a full picture of how the test results were handled and what the physician did or did not do with respect to the results, an attorney must first follow the result from the reporting party all the way through the plan adopted by the physician. When it appears that the physician did not appropriately take the test results into account when assessing the patient’s condition or formulating a plan for the patient, the attorney should then question why and how this occurred. In those cases where the attorney discovers that the physician’s process for receiving test results was flawed, allegations of malpractice may be brought that are far easier for a jury to understand and that do not necessarily delve into complicated discussions of medical diagnoses.

C. FAILURES OR DELAYS IN NOTIFYING A PHYSICIAN OF A MATERIAL CHANGE IN A PATIENT’S CONDITION

Under certain circumstances, a variety of healthcare providers may be responsible for notifying a physician of a material change in a patient’s condition. Nurses carry this responsibility an overwhelming majority of the time, however, and we have focused most of our discussion for this presentation on nursing standards of care for that reason.

Nurses are considered “other healthcare providers” under the Alabama Medical Liability Act. Ala. Code § 6-5-481 (8); see also Jordan v. Brantley, 589 So. 2d 680 (Ala. 1991). The standard of care applicable to nurses practicing in Alabama is therefore that level of such reasonable care, skill, and diligence as other nurses ordinarily have and exercise in like cases.

The nursing standard of care applicable to a given situation may be established through a variety of means, including expert witness testimony, hospital policies and procedures, nursing textbooks, journal articles, and trade association publications. Among the many sources through which to establish the nurse’s duty as a patient advocate, perhaps none is as important as the healthcare facility’s own policies and procedures.

The first place to look, and be sure to look early in the discovery process, is at the facility’s policies and procedures on physician notification. A hospital or healthcare facility will have policies that specifically instruct a nurse on when to notify a physician of a change in a patient’s condition. You will often find these policies both in general nursing policies as well as in unit specific policies. For these reasons, a plaintiffs’ attorney should never accept a representation by a defense lawyer that the defendant has produced all policies that applied to the unit in which the patient was located at the time of the alleged malpractice. This tactic has been attempted in every nursing malpractice case we have handled. In every instance, we have later found policies relevant to the case that were not initially produced because they were not designated as applying to a specific area of the hospital.

To be thorough, do not stop your efforts simply because you receive a favorable policy and procedure adopted by the hospital. As with most types of lawsuits, trade associations can provide valuable information favorable to a patient advocate. For example, the American Nurses Association (“ANA”) has promulgated a Code of Ethics. This Code of Ethics provides in pertinent part the following:

1. The nurse promotes, advocates for, and strives to protect the health, safety, and rights of the patients;
2. The nurse’s primary commitment is to the health, well-being, and safety of the patient across the life span and in all settings in which healthcare needs are addressed. As an advocate for the patient, the nurse must be alert to and take appropriate action regarding any instance of incompetent, unethical, illegal, or impaired practice by any member of the healthcare team, or the healthcare system, or any action taken on the part of others that places the rights or best interests of the patient in jeopardy;
3. Nurses are accountable for judgments made and actions taken in the course of nursing practice, irrespective of a healthcare organization’s policies or provider’s directives; and
4. When the needs of a patient are beyond the qualifications and competencies of the nurse, consultation and collaboration must be sought from qualified nurses, other health professionals, or other appropriate sources.

(American Nurses Association, “Code of Ethics for Nurses with Interpretive Statements”).

The ANA also promulgates “Standards”. The ANA even defines the role of Standards as follows:

Standards are the authoritative statements by which the nursing profession describes responsibility for which its practitioners are accountable . . . . Written in measurable terms, standards also define the nursing profession’s accountability to the public and the client out comes for which nurses are responsible.

(American Nurses Association, Standards of Clinical Nursing Practice).

These Standards are available for purchase directly from the American Nurses Association at its web site at www.nursingworld.org. Of particular note is the fact that the ANA has published a position that “[a]ll nurses are legally accountable for actions taken in the course of professional nursing practice, as well as for actions assigned by the nurse to others assisting in the provision of nursing care.”

(American Nurses Association, “Nursing’s Social Policy Statement”).

Once you are in a position to establish through both a facility’s policy and ANA publications that the standard of care requires physician notification of a change in a patient’s condition, then consider whether any associations or organizations for nursing specialties at issue in a particular case may have published similar information. For example, in a case where the patient was in a critical care unit, and indeed in any instance where you are reviewing the care of a critical care nurse, the American Association of Critical Care Nurses’ (“AACCN”) publications can provide meaningful guidance and a persuasive means by which to define this standard of care. The AACCN has published a “public policy” providing that critical care nurses must do a number of things, including “monitor and safeguard the quality of care the patient receives.”

Once you have explored the facility’s policies and procedures on physician notification as well as trade association publications with respect to a nurse’s duty in this respect, the final step prior to expert testimony in establishing the standard of care is to survey nursing textbooks and any appropriate nursing journals. There are numerous nursing textbooks available for reference, and our only word of caution is to be certain to utilize a version of the textbook that was in place when the alleged failure to notify a physician of a material change in a patient’s condition occurred.

As one final point before we consider the specific nursing breach of failing to notify a physician of a change in a patient’s condition, the cornerstone of any malpractice case against a nurse is the nursing process. Every nurse defendant should be asked about his or her understanding of the nursing process, and any nurse who responds generically that the nursing process is to “assess and intervene” should be taken to task for that response. The nursing process is a five-step process that continuously repeats itself: 1) Assessment; 2) Nursing Diagnosis; 3) Care Planning; 4) Intervention; and 5) Evaluation. (See, e.g., Foundations of Nursing Practice: A Nursing Process Approach, Leahey and Kaziley (1998)). Breaches in the standard of care can occur anywhere in this five-step continuum.

For this portion of our presentation, we have been asked to focus on common themes and defenses when a nurse fails to notify a physician of a change in a patient’s condition. The failure of a nurse to notify a physician of a change in a patient’s condition constitutes a breach of the standard of care sufficient to get the claim to a jury. See, e.g., Mobile Infirmary Ass’n v. Tyler, 981 So. 2d 1077 (Ala. 2007). In Tyler, the Court upheld a jury verdict in favor of a plaintiff and against a nurse for negligently failing to communicate adequately and accurately the nature and severity of a patient’s abdominal pain. The plaintiff contended that the nurse’s action in failing to communicate a very specific item of information, i.e., that the patient had described her pain as the worst abdominal pain she had ever experienced, fell below the applicable standard of care. The Court, when considering the verdict, found that there was a specific way in which the nurse could have complied with the standard of care by reporting the information either to a physician or to her supervising nurse.

All nursing textbooks we have reviewed make some reference to the nurse’s obligation to relay changes in a patient’s condition to a physician. For example, the text Fundamentals of Nursing by Kozier, Erb, Berman, and Synder sets forth several areas of “basic nursing care” that nurses are to follow. Among the common intervention errors noted in this list is “failing to bring distressing symptoms and changes in client status to the attention of the physician [promptly].” This text goes on to identify a type of nursing malpractice as “failure to observe and take appropriate action” with respect to a patient’s condition.

As a practical matter, it is very unlikely that any nurse whose care is at issue in a lawsuit or any defense nursing expert will quibble with the fact that the standard of care requires nurses to report changes in a patient’s condition to a physician. More often, they try to narrow this obligation by limiting it to “material” or “significant” changes in the patient’s condition, which can be an appropriate limitation if those words are properly defined. Typically, however, the use of this limiting language will be a stepping-stone to a defense argument that the patient’s particular change in condition that went unreported did not represent a “material” or “significant” change. This can be a very persuasive argument for a nurse whose care is at issue if the nurse has properly documented findings of his or her assessment and if the patient’s clinical condition otherwise demonstrates a stable patient. This will allow the nurse to argue that the change the plaintiff’s attorney contends should have been reported was not significant given the patient’s overall clinical picture.

To address this, a plaintiff’s attorney must first elicit a helpful definition or establish meaningful parameters for the discussion of what constitutes a material or significant change in a patient’s condition. In our experience, most nurses will agree that a material or significant change is any change, including a change in the patient’s laboratory data or clinical presentation, that reflects actual or potential harm to the patient or a worsening of the patient’s overall clinical picture. If a nurse disagrees with a similar definition, that nurse can then be neutralized as his or her credibility will be in serious doubt.

By getting the nurse to agree with a similar definition, it is easier to use isolated information that can be an indicator of a worsening condition to support an argument that the nurse should have notified a physician of this change. Regardless of what change is at issue, it is necessary for the plaintiff’s attorney to be prepared to discuss during depositions what constitutes a material or a substantial change and to be prepared for the defense that the information the plaintiff’s attorney contends should have been brought to the attention of the physician does not represent a material or significant change given the overall clinical picture.

Because we were asked to utilize examples of cases we have handled, we will end this paper with an example of a failure to notify a physician of a material change in a patient’s condition that proved fatal. A case we handled against a Birmingham hospital involved a patient in the SICU who was suffering from post-surgical complications. The patient had long-standing respiratory issues that had required the home use of CPAP for several years. Although these respiratory issues were unrelated to the reason for the patient’s hospitalization, the respiratory issues had manifested during what had become a difficult post-surgery recovery for the patient.

While in the SICU, the patient showed clear clinical signs and symptoms of respiratory distress. The nurse caring for the patient notified a physician, who ordered an ABG. That AGB result contained a panic value and showed that the patient was in respiratory acidosis, or increased blood acidity due to decreased ventilation of the pulmonary alveoli. In these circumstances, a patient may still be showing a normal O2 saturation on his or her pulse oximeter, but the patient is nonetheless spiraling toward respiratory failure and resulting cardiac arrest.

In our case, the respiratory therapist resulted the ABG and saw the panic value PCO2, but she did not report the panic value to anyone. The defense nursing expert testified that the nursing standard of care required the nurse to follow up on the test results if she had not seen them within 30-45 minutes, but the nurse caring for our decedent never followed up on the ABG. Because of two independent failures, one by the RT and one by the nurse, the physician was never notified of the abnormal ABG. The patient coded and never recovered.

If the respiratory therapist had notified the nurse or the physician of the ABG, the patient could easily have been ventilated. Likewise, if the nurse had followed up on the test results and had notified the physician, the patient’s death would have been avoided. The hospital’s policies and procedures applicable both to the nurse and to the RT, under any reasonable interpretation, required prompt physician notification of the abnormal ABG results, a fact that was not seriously contested by the hospital. One simple failure to notify a physician of the results of a critical test that plainly revealed a material change in a patient’s condition led to the patient’s death and a timely and costly malpractice action.

When litigating the failure by a healthcare provider to notify a physician of a material change in condition, be prepared to coax the defendant nurse or his or her expert into a definition of “material change” or “substantial change” that will be consistent with your theme and allegations of malpractice. Once that definition is in place and agreed upon, you will have a relatively firm framework within which to establish to the jury that the nurse or other healthcare provider clearly should have notified a physician of the change at issue in your case.

KEITH JACKSON is a partner with Riley & Jackson, P.C. in Birmingham, Alabama.