Sometimes doing everything right is still not enough. As the following case shows, lawsuits can happen even to those who do nothing to deserve them. While litigation may be inevitable, liability can be avoided.
Ms. P, aged 36 years, was a nurse working on the surgical floor of a mid-size hospital. She had been working at the same hospital for her entire career and had received stellar reviews from her supervisors. However, she had recently begun to feel unfulfilled professionally and decided to go back to school part-time to pursue an advanced-practice degree.
Ms. P wished that she had the savings to be able to quit work and focus completely on school, but that was not possible at this time, so she remained on staff at the hospital. Ms. P hoped that once she had the degree she would work for a private practice so that she could experience another type of work setting.
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Ms. P’s performance at the hospital was impeccable. In the 10 years she had been there, she had never once been reprimanded or received anything other than praise from her supervisors. She took her work and the health of her patients very seriously.
One of Ms. P’s patients was Mrs. A, a 62-year-old woman who had been suffering from hearing loss and ringing in her right ear. An MRI revealed that Mrs. A had an acoustic neuroma, a benign and usually slow-growing tumor of the vestibular nerve.
After a comprehensive examination, the patient was given three choices by her neuro-otologist: observation with further testing to monitor the tumor growth, surgery to remove the tumor, or radiotherapy. Upon learning that the tumor appeared to be growing faster than expected, Mrs. A opted for surgery.
The surgery went as planned, and Mrs. A was transferred to the intensive care unit for monitoring overnight. Everything remained normal, and Mrs. A was transferred to the main floor of the hospital the next day, at which point Ms. P began caring for her. Throughout the day, Mrs. A complained intermittently of headaches of varying intensity. Pain medication relieved her discomfort. Ms. P performed regular neurologic checks on the patient; all findings were normal.
The next morning, Mrs. A’s headaches had worsened and were accompanied by nausea. The patient reported her pain as a 9 out of 10. Ms. P noted this on the chart and contacted Mrs. A’s physician, who changed the pain medication and ordered medication for the nausea.
Mrs. A’s condition improved for a few hours only to worsen again by the afternoon, when she reported the pain as being 10 out of 10 and the worst since surgery. Ms. P again noted the patient’s complaints, performed another neurologic check (which was normal), and conferred with the physician, who switched the pain medication again.
One hour later, the patient reported to Ms. P that she felt drowsy. Ms. P decided to do another neurology check and found that Mrs. A was exhibiting left-side weakness and informed the physician.
A subsequent CT scan showed intracranial bleeding and hydrocephalus. Shortly thereafter, Mrs. A became unresponsive and had to be intubated. Surgeons attempted to drain the fluid from her skull and relieve pressure caused by swelling of the brain, but Mrs. A was left with permanent brain damage that would require her to have continuous care for the rest of her life.
Mrs. A’s husband hired an attorney and sued for compensation for loss of companionship. The attorney filed a malpractice lawsuit against the hospital, the physician and Ms. P. The lawsuit alleged that Mrs. A’s injuries were caused by a breach of the standard of care by the doctors and nurses caring for her.
Ms. P was saddened by her patient’s outcome, but she was shocked to find out that she was being partially blamed for it. The court papers alleged that Ms. P should have contacted the physician sooner and should have advocated for a CT scan for the patient. The legal documents claimed that more treatment options would have been available if the CT scan been performed earlier.
Ms. P met with a defense attorney provided by her insurance company.
“I didn’t do anything wrong,” she told the attorney. “I notified the physician as soon as there was any real issue, and I documented everything. I don’t know what else I could have done.”
After going over Mrs. A’s medical records with a physician expert, the attorney told Ms. P that he believed she had not committed medical malpractice.
At trial, the plaintiff alleged that the hospital and staff were negligent in monitoring Mrs. A’s condition, and that had she been given a CT scan earlier, she might have had a better outcome. The defense introduced expert testimony stating that headaches—even severe ones—are not uncommon after surgery for acoustic neuroma and do not warrant a CT scan without accompanying changes in neurologic function.
The defense also introduced testimony from a nursing expert affirming that Ms. P’s actions fully met the standard of care, as evidenced by Ms. P’s careful notes and repeated communication with the physician. The jury determined that the medical staff had properly assessed Mrs. A’s condition and that no negligence or malpractice had occurred.
Legal background
As a clinician, you can protect yourself from liability, but it is very difficult to protect yourself from being sued. Most cases, however, never reach trial and either settle out of court or are dismissed. A 2012 study found that approximately 55% of malpractice claims result in litigation, and of the cases litigated, 54% are dismissed.
Trial verdicts are only reached approximately 4.5% of the time. Almost 80% of the cases that go to verdict end in favor of the health-care professional (Jena AB. Arch Intern Med. 2012;172:892-4).
Protecting yourself
As Ms. P’s case illustrates, a clinician can limit his or her liability. Ms. P followed all required hospital protocols. She attentively monitored her patient, conducted regular neurologic checks, made sure that her patient was getting appropriate pain medication, and contacted the physician to determine whether supplementary medication was warranted when the patient’s pain worsened.
Ms. P carefully noted everything in the patient’s records, including the times of the neurologic checks, the exact response, the patient’s description of her pain, and the effectiveness of the pain medications. And when Ms. P noted that the patient seemed drowsy, she conducted an unscheduled neurologic check on her own initiative, which revealed a potential problem. Ms. P addressed that issue right away by contacting the physician with the findings, and the physician immediately ordered a CT scan.
In the end, methodical note-taking, careful adherence to hospital procedure, and clear and immediate communication with the patient’s health-care team protected Ms. P from being found liable for malpractice.
