Legal Pearls: Physician Sued After Emergency in Clinic
Dr A had just arrived in the office when the nurse told her that there was a woman with an infant in the waiting room, and that the woman said that at one point during the night the infant had stopped breathing.
The physician began examining the baby when suddenly it stopped breathing again. Pandemonium broke out as Dr A called for a nurse and began CPR on the baby. Luckily, after a few minutes, the baby began breathing again.
She quickly bundled the baby back up, tucked her into Mrs B’s arms, and directed her to take the baby to the emergency room immediately.
At the hospital, the baby was diagnosed with respiratory syncytial virus which resulted in a hypoxic brain injury. Dr A did not find out the fate of the baby until over a year later when she was served with papers notifying her that she was being sued for medical negligence by the child’s family.
Was Dr A negligent?
(Discussion on next page)
Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association and editor of Pharmacy Times.
Knowing what to do in an emergency is something that every practitioner should be aware of, not just those who work in a hospital or urgent care setting. This month’s case examines what happens when a physician makes the wrong choice in handling an emergency.
Clinical Scenario
Dr A, 47, was a family physician working in a mid-sized walk-in clinic in an urban area. She had been at the clinic for close to 7 years. She saw both children and adults, but because more physicians in the clinic treated adults, she primarily saw children and teens. Most of patients that she saw came in for typical childhood issues–strep throat, bronchitis, strains and sprains, an occasional broken or fractured bone, flu, and the like.
Rarely did Dr A encounter true emergencies, and when she did, she would generally just refer the patient to the emergency department of the local hospital, which was 5 minutes away. One morning, however, this changed.
Dr A had just arrived in the office when the nurse told her that there was a woman with an infant in the waiting room, and that the woman said that at one point during the night the infant had stopped breathing. Not knowing whether this was an inexperienced new mother who might be overreacting or a true emergency, Dr A directed the nurse to show the woman and baby into an exam room immediately.
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In the exam room, Dr A introduced herself to the mother, who turned out to be a foster mother of the 2-month old baby D. The foster mother, Mrs B, reported that during the night the baby had stopped breathing briefly but then had started again.
“I called the doctor in the morning,” said Mrs B, “and they told me to take her to the emergency department of the hospital, but that’s such a terrible place for a baby. I figured that since she seemed okay, I would just take her here. Less sick people in the waiting room.”
Dr A frowned. While it was true that there were fewer people in the waiting room than there probably would be in the emergency department, she was a bit concerned about Mrs B not following the directions from the baby’s doctor.
Nevertheless, the physician began examining the baby when suddenly the baby stopped breathing again. Pandemonium broke out as Dr A called for a nurse and began CPR on the baby. Luckily, after a few minutes, the baby began breathing again. Dr A’s heart was pounding. She had not had to perform CPR since the days of her residency.
The baby needed to get to the hospital–that was apparent. The hospital was 5 minutes away. Dr A thought briefly of the time it would take for emergency medical services to arrive at the clinic to take the baby to the hospital. She was sure it would be longer than if the baby were taken there immediately.
She quickly bundled the baby back up, tucked her into Mrs B’s arms, and directed her sharply – “The hospital emergency department is 5 minutes away. Take the baby and go there now, this instant. Go!”
The wide-eyed foster mother dashed out of the clinic with the baby and drove to the hospital. Dr A sank into a chair to calm down for a few minutes before seeing her next patient.
At the hospital, Baby D was diagnosed with respiratory syncytial virus which resulted in a hypoxic brain injury. The child ended up suffering from cortical blindness, causing her to forever be unable to walk, stand, sit, feed herself, or talk.
Dr A did not find out the fate of Baby D until over a year later when she was served with papers notifying her that she was being sued for medical negligence by the child’s family. The suit claimed that Dr A was negligent for failing to summon emergency medical services when the baby stopped breathing, or accompanying the baby to the hospital. The foster mother, Mrs B, was also sued for her failure to take the baby to the hospital after being told to do so on the phone the morning after the baby first stopped breathing.
Dr A contacted the attorney provided by her insurance company. She felt awful when she heard about the fate of Baby D, yet she couldn’t understand why she had been sued for this.
“I thought I was doing the right thing,” she told the attorney. “It would have taken at least twice as long for the baby to get to the hospital if I had called an ambulance. I thought it was more important to get her to the hospital as quickly as possible. Nothing would have been faster than having the foster mother drive her there.”
“I understand that,” said the attorney, “and it might be viewed that way by the jury, if this goes to trial. But, then the obvious question will be – why didn’t you accompany them?”
Dr A looked surprised. “It didn’t even occur to me,” she told the attorney. “I normally don’t leave the clinic while I’m working. There were other patients waiting…“ She trailed off.
“But there were other physicians at the clinic that day, weren’t there?” asked the attorney. “Someone could have covered for you?”
“Yes,” confessed the physician.
“This will come up in front of the jury, and it won’t look good,” said the attorney.
The case slowly advanced towards trial. However, prior to trial starting, a settlement was reached for $1.2 million, of which Dr A paid $900,000 and the state insurance fund for foster parents paid the rest.
What’s the “Take-Home”?
The bottom line in this case is that Dr A effectively abandoned her patient by sending the baby out of the clinic with her foster mother right after the baby had been resuscitated. She should have immediately had a nurse call an ambulance when the baby stopped breathing. But instead, Dr A did an analysis in her head about how long it would take an ambulance to get there, and decided that having the foster mother drive the baby would be faster.
Dr A did not suggest or offer to come with Mrs B, leaving the foster mother to frantically drive a baby to the hospital. Although it was admittedly a short drive, the baby could have stopped breathing in transit again, the distracted foster mother could have crashed the car or gotten lost, or any number of other things could have delayed the trip to the hospital.
The Bottom Line—The physician should have accompanied the baby and the foster mother to the hospital. Had she done so, or called an ambulance, she would not have faced liabil