Ms. K, aged 29 years, hated the night shift. But as one of the newer nurse practitioners on staff at a mid-sized hospital, she could not be picky about her hours.

Without seniority, Ms. K’s work assignments depended on which departments were short-staffed at the time. This shuffling around left the young NP feeling disjointed and exhausted, and she looked forward to a time when she would get regular hours in a specific department in the hospital. Until then, she had to be flexible.

Mr. M, aged 24 years, had been traveling on business when he developed an excruciating and debilitating headache accompanied by vomiting. He was taken to the emergency department of the local hospital. A cranial CT scan revealed swelling in the brain, probably caused by an aneurysm. But the admitting hospital was not equipped to handle the complexities of the case, so Mr. M was transferred to the hospital in which Ms. K worked. The NP was assigned to watch the patient at night until Dr. B, the neurosurgeon handling the case, could relieve the intracranial pressure. Surgery was scheduled for early the next morning. The patient, although unconscious, seemed stable, and Ms. K periodically checked up on the young man as she made her rounds.

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When Ms. K checked on Mr. M at 1:30 am, she discovered that his right pupil was fixed and dilated and noted this in the chart. Ms. K knew that a fixed and dilated pupil could indicate a serious condition and called Dr. B at home to report her finding. The physician thanked her and hung up the phone.

Ms. K went back to work and kept her eye on the clock. Two hours passed, and Dr. B was nowhere to be seen. By 6:30 am, as Ms. K’s shift was ending, Dr. B was still not on site. A short while later, Ms. K saw the physician coming in to scrub for the scheduled surgery as she was leaving the building.

Dr. B performed the operation—including a partial lobotomy—but the patient had suffered a brain herniation and could not be saved.

Mr. M’s parents contacted a plaintiff’s attorney to investigate the circumstances surrounding their son’s death. Hospital records indicated that Ms. K had noted the patient’s fixed and dilated pupil early in the morning—a clear sign of impending brain herniation—and had contacted the neurosurgeon, but he did not come to the hospital until five hours later. Nothing else had been done in the meantime. A malpractice suit was filed against the hospital and Dr. B.

Administrators notified Ms. K of the lawsuit and explained that she would be called as a witness. She met with hospital attorneys to go over her testimony and felt relatively confident that everything would go smoothly. After all, she’d made a written record of the situation and notified the physician.

At trial, Ms. K testified to observing the change in the patient’s pupil, noting it in the chart, and immediately calling Dr. B. And she reported seeing Dr. B come in, as scheduled, just before 7 am rather than in the middle of the night.

Under cross-examination, Ms. K was asked whether she had attempted to contact Dr. B again after the initial phone call. She answered that she had not.

“Did you notify your nursing supervisor at the hospital or another physician, or call an emergency code?” asked the plaintiff’s attorney.

“I did not,” Ms. K replied.

Dr. B’s recollection was completely at odds with Ms. K’s testimony. He testified that Ms. K had described the patient’s pupil to him as “sluggish” rather than “fixed and dilated.”

“Had she said ‘fixed and dilated,’ of course I would have come to the hospital immediately,” asserted Dr. B. “But a ‘sluggish’ pupil is not an emergency situation.”

The plaintiff’s attorney introduced enough expert testimony to prove malpractice and that the patient would have had a good chance of survival if his operation had been performed five hours earlier. The jury was left to decide whose testimony they believed—Dr. B’s or Ms. K’s.

After several hours of deliberation, the jury returned with a verdict. The hospital was found liable, but Dr. B was not. The family of Mr. M was awarded $2.5 million in damages.

Legal background

Ms. K was not sued in this case. Instead, the plaintiffs chose to go after the defendants with deeper pockets—the hospital and the physician. This is quite common, and while it does mean that the hospital employee (in this case, Ms. K) would not be found personally liable at the end of the trial, she still had to endure the difficulty of being principally involved in the lawsuit.

Once malpractice was proven—the fact that the patient suffered a brain herniation that should have been diagnosed and acted upon hours earlier—the jury was left to try to determine who was at fault. The jurors were presented with two differing accounts of what happened (a very common occurrence at a trial), and they had to decide which account they believed. While one can never really know what goes on in the mind of a juror, the decision that Ms. K’s testimony was less reliable was likely based on the fact that she neither reported the situation to a supervisor nor called the physician again, which would have been reasonable given the seriousness of the patient’s condition.

Protecting yourself

Ms. K started out on the right track. She noted the problem, documented it and contacted the physician. But after that, the system failed. Once time had passed and Dr. B had not appeared, Ms. K should have tried to contact him to verify that he was coming in and then notified her supervisor or another physician about the immediate problem. Ms. K correctly identified the fixed and dilated pupil as a sign of an emergency situation but did not react as though there were an emergency.

The hospital was ultimately found liable because it did not have a clear chain of command for NPs caring for neurosurgical patients. Despite the lack of policy, however, Ms. K should have realized that time was of the essence in a case involving a brain injury and that simply making a phone call to the doctor wasn’t enough. Diligent follow-up could have saved this patient’s life.

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.