Legal Background

The case went to trial. At trial, experts testified that this was a surgical emergency, and the patient should have been transported to the operating room by 9:00 AM, or 10:00 AM at the latest. The experts testified that had the incision been reopened, the abdomen washed, and a new colostomy performed by 10:00 AM, the patient would still be alive.

A nurse testified that Nurse N breached the standard of care by failing to properly escalate the situation by timely calling the rapid response team at the hospital. The hospital had a chain of command policy requiring Nurse N to seek immediate help if her patient’s condition was deteriorating. The expert nurse testified that Nurse N should have moved up the chain of command by 8:30 AM due to Mr M’s shortness of breath, abdominal pain, sweating, and extremely concerning vital signs.

The defense moved to have the case dismissed, claiming that the patient’s mother had the patient cremated and thus “spoiled the evidence.”

The court held that “the lawful cremation of a family member’s remains is not an act of destruction of evidence, nor does Mrs. M’s decision to have her son’s remains cremated evince an intent to destroy evidence.”  The judge allowed the case to go to the jury. After deliberation, the jury found for the plaintiff and awarded a judgment of $1,350,000.

Protecting Yourself

Nurse N failed to advocate for her patient in this case. After the first 2 phone calls with the surgeon, once the patient’s vital signs worsened, she should have suspected an anastomotic leak and called for help within the hospital, rather than waiting for Dr A to arrive.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.