January/February 2009

EMTALA suit does not hinge on specific diagnosis

© 2009 The Medical-Legal News

By Rose Clifford, RN, LNCC, editor

A hospital discharged a 39-year-old man twice from its ER. The man, James “Milford” Gray, died at a relative’s home shortly after the second discharge. The cause of death was purulent peritonitis caused by a rupture of a duodenal ulcer due to duodenal peptic ulcer disease.
Gray’s estate filed a suit claiming: 1) medical negligence on the part of the hospital for a failure to diagnose, and 2) that the hospital violated the Emergency Medical Treatment and Active Labor Act (EMTALA) for failing to stabilize Gray’s emergency medical condition prior to discharging him.
The hospital argued that a failure to diagnose case and an EMTALA case are mutually exclusive. That is, even if the hospital failed to diagnose Gray’s condition, for which it would be liable, the hospital then would not also be liable under EMTALA for failing to stabilize an emergency medical condition that its doctors did not detect.
The court said no. The court made it clear that the two legal theories have different elements of proof and that EMTALA actions are all about ignoring severe acute symptoms that are likely to lead to a patient’s deteriotation after discharge, whether a specific diagnosis is made or not. Thus, both actions can lie at once.
The case is Thomas v. St. Joseph Healthcare, Inc., 2007-CA-001192-MR. Dec. 5, 2008 (Ky. Court of Appeals). •

Complex medical records? Be, or use, a “fact” witness

© 2009 The Medical-Legal News 

By Patricia Iyer, MSN, RN, LNCC

Case law: when a nurse might be a fact witness

© 2009 The Medical-Legal News

By Rose Clifford, RN, LNCC, editor

In Heinzerling v. Goldfarb, 359 N.J.Super. 1 (2002), the court allowed a nurse, Audrey Berry, RN, MSN, to be a fact witness. The case, one of first impression, expanded the concept and role of a fact witness, but the facts on which the holding rested, and the outer limits of what a fact witness may or can do, should be kept in mind.
The holding should be applicable to other jurisdictions, however. New Jersey’s Rule of Evidence 1006 says: “The contents of voluminous writings or photographs which cannot conveniently be examined in court may be presented by a qualified witness in the form of a chart, summary, or calculation….” The Federal Rule of Evidence 1006 is nearly identical, but does not contain the words “by a qualified witness.” However, case law regarding the federal rule has held that “testimonial” summaries logically follow from the fact that a “summary” is allowed.
The court explained the types of testimonial summaries that exist:
1) There are first, “primary-evidence summaries” that are typically used to condense voluminous materials that cannot be easily examined in court.
2) There are, second, “pedagogical (teaching)-device summaries,” more commonly described as demonstrative aids, which are presented to summarize, clarify or simplify proofs admitted in the case.
3) Third, there are “secondary-evidence summaries.” These are hybrids of the first two categories, admitted not in place of the evidence they summarize but in addition to it. Secondary-evidence summaries are permitted where, in the judgment of the trial court, “such summaries so accurately and reliably summarize complex or difficult evidence… as to materially assist the jurors in better understanding the evidence. Such devices are not prepared entirely in compliance with Rule 1006 and yet are more than mere pedagogical devices.”
The court concluded that, “Nurse Berry’s proposed testimony should be analyzed under the first and last of these evidential categories, either as a 1) primary-evidence summary… admitted in lieu of Mrs. Heinzerling’s post-diagnosis medical records or 2) as a secondary-evidence summary designed to accompany the admission of those proofs.”

Some points to remember from the case:
• The nurse was not opining on standards of care, causation or other liability issues. The nurse was extracting information from medical records and explaining to the jury the decedent’s treatments and symptoms.
• The nurse was assisting in the damages phase of trial.
• Rule 1006 makes clear “that a summary is only appropriate for documents that are truly ‘voluminous’ and cannot be ‘conveniently’ examined in court.”
• The summary “must fairly condense the underlying material…. The summary cannot embellish with information not contained in the originals.”
• The summary “cannot be jury argument in disguise.”
• The underlying records must be generally admissible as business records.
• The nurse was a “surrogate” supplier of information since Heinzerling, deceased, was unable to speak for herself.
• The nurse in the case had lengthy credentials, with many published articles, so as to comply with Rule 703.
• The court said: “The nurse need not be a physician to describe… the medications and treatments…, or to translate the common medical symbols…. Also, the nurse need not offer any expert opinions in her limited trial role as a summary provider. As Rule 703 explicitly recognizes, an expert may testify in the form of an opinion ‘or otherwise.’”
• The court said: “[since] the operative evidence concept here is one of ‘practical necessity,’ this Court finds that a singular presentation from Nurse Berry offers an efficient and less costly alternative to presenting each doctor in turn…. Moreover, even if plaintiff or defendants choose to call those physicians at trial and admit the underlying records in toto, Nurse Berry’s testimony may still be admitted as a secondary-evidence summary.”
• The court said: “Counsel for plaintiff is admonished to present the nurse’s testimony in a dispassionate manner.”
• Instructively, the court gave some practical advice on how a fact witness must prepare and present a summary: 1) “…the Court will require that Nurse Berry’s actual testimony at trial be presented in a manner that is a substantially balanced and fair summary…, 2) Nurse Berry’s trial testimony must not omit… important developments, and 3) to be admissible as a summary of the records, her testimony must not be skewed to include only the bad and to ignore the good.” •

Strike 4 for fentanyl

© 2009 The Medical-Legal News

In November, Johnson & Johnson lost its fourth (out of four) fentanyl pain patch case in DiCosolo v. Janssen from Cook Co., Ill., according to Bloomberg.
In the case, the jury was convinced that an overdose of fentanyl was the cause of a patient’s death. DiCosolo’s survivors were awarded $16.6 million.
Johnson & Johnson also in October was ordered to pay more than $13 million to the family of a woman who overdosed on pain patches. In Hodgemire v. Janssen, from Seminole County, Fla., Johnson & Johnson was found 80% at fault (for having flawed patches) and a physician assistant was found 20% at fault for giving bad medical advice. •

Chronic pain is often mismanaged, made worse

© 2009 The Medical-Legal News 

By Margaret Wacker, RN, PhD

Destruction of records not always a sign of guilt or spoliation

© 2009 The Medical-Legal News 

By Dan Clifford, publisher

• The Gist: As we move to electronic medical records, more issues of spoliation may arise. Here, the court was satisfied that the hospital had acceptable records retention.

A woman who gave birth to a neurologically-impaired child sued a hospital, its nurses and two doctors involved in the birth. The woman lost her claim at the trial level, as the jury found no negligence, and the woman appealed. She claimed, among other things, that the hospital allowed medical records to “spoil” when it permitted digital copies to be made and the originals destroyed.
The court sided with the defendant hospital, as the way the hospital kept it records was 1) evidently part of its standard policy and 2) the plaintiff could not show any guilt-implying inference in the way the hospital handled its records.
The appeals court said: “…Chobanian [the plaintiff] argues that the trial court erred in refusing to allow the jury to hear evidence relevant to spoliation based on destroyed original copies and late entries and alterations in the medical records.”
The court noted that destruction of medical records, or “spoliation of evidence,” sometimes may be communicated to a jury to permit it to draw an inference that the “destroyed evidence would have been unfavorable to the party that destroyed it.”
Allowing a jury to assume that the alteration or destruction of records equates to a cover-up can sometimes be awarded as a sanction against one party in a lawsuit.
However, the court goes on to effectively defend the hospital in its record-keeping: “Chobanian argues that she learned during the course of the trial that the original paper labor and delivery chart, the newborn chart and a printout of the fetal monitor from labor were destroyed. She also argues that there were late entries in the chart and alterations in the chart that warranted a spoliation instruction.”
“Meriter [the hospital] responds that the original paper charts were destroyed in the normal course of business, but only after copies had been provided to Chobanian and they had been stored on microfilm or compact disk. It also responds that the printout from the fetal monitor was not retained but the entire fetal monitor tracing was stored and then a complete printout was provided to Chobanian.”
“Finally, Meriter points out that late entries and alterations in the record were discussed at trial and are normal in the course of labor and delivery, and that Chobanian has not explained the significance of any destruction of or alterations in the records.”
“In her reply brief, Chobanian does not refute Meriter’s spoliation arguments, only reiterating that she did not learn of the destruction of materials until trial. Again, we will take this as a concession that Chobanian did receive all the medical records in some form and had an opportunity to address any alterations to the record.”
“Thus, we conclude that the trial court properly exercised its discretion in refusing to give a spoliation instruction.”
In the case, Chobanian v. Meriter, 2008 WL 4426747 (Wis. App.), the appeals court did not really reach the issue of whether the hospital is completely free to digitize records and destroy the originals with impunity, as the plaintiff did not address the issue early enough, but the court seemed quite satisfied that the records were properly handled in this instance. •

Case overturned for lack of causation expert

© 2009 The Medical-Legal News 

• The Gist: This case looks to have been a potential winner for the plaintiff, yet emphasizes the importance of having a suitable expert witness who can bridge the causal nexus.
—RC

Establishing causation can be tough, but it also may appear a simple enough task that attorneys and consultants overlook the need for proper expert witnesses. Did this happen in a recent New York case?
In Zak v. Brookhaven Memorial, 54 A.D.3d 852 (2008), the executor of a deceased woman brought a medical malpractice suit against a hospital. Anna D. Awe, the decedent, had been admitted to the hospital complaining of abdominal pain and was treated for gastrointestinal bleeding.
Awe stayed in the hospital for about a month and eventually was given heparin, a blood-thinning drug, without a physician’s order. More bleeding occurred as a result. Awe’s health declined and she eventually died in the hospital.
The executor asked for summary judgment at the trial court level and won, but an appeals court reversed.
The appeals court apparently disliked that the plaintiff had tried to establish causation with only the affidavit of a registered nurse, deposition testimony and hospital records.
While from the case’s description of the care Awe received it may appear that the heparin caused Awe’s death, the appeals court was not impressed with the causation tactics used.
The court said: “Although the registered nurse was qualified to establish that the allegedly negligent administration of heparin without a physician’s order was a departure from acceptable standards of good nursing care, she was not qualified to opine that said departure was a substantial factor in causing any injury separate and apart from the decedent’s underlying condition.”
The court also said: “The plaintiff’s other submissions, including hospital records and deposition testimony, were also insufficient to establish a causal link between the hospital’s alleged breach of duty and the decedent’s… eventual death.” •

Anticoagulants like heparin, Coumadin: effective, yet risky double-edged swords

© 2009 The Medical-Legal News 

By Patricia Iyer, MSN, RN, LNCC

Yes, accurate charting really does matter

© 2009 The Medical-Legal News 

• The Gist: Many medical cases are made or broken on fraudulent, incomplete or inaccurate documentation.
—RC

The November 2008 issue of the Legal Eagle Eye Newsletter (www.nursinglaw.com) carried two stories that highlight the importance of proper charting.
• In an Arkansas case a home-health hospice nurse charted a patient’s conditions before actually visiting the patient. The nurse was fired for falsifying the records. As a defense, the nurse claimed the patient’s status would have been the same whether or not the patient was actually visited. The court decided this was not the point and that intentional falsification was grounds for dismissal.
• In a Connecticut case a nurse overdosed a patient by administering too much Dilaudin. Realizing the mistake, the nurse then created a bogus verbal order from a doctor as a cover-up. The doctor was not the patient’s physician, however, and had never given such an order. The creation of the fake order was a criminal act, but did not relieve the hospital from its civil liability, according to the story.
• In the October issue of the Newsletter, a case was reported where a defendant hospital triumphed in a suit where the family of a decedent said the hospital had failed to diagnose the decedent’s heart trouble. The decedent had come into an ER for fluid replacement, not heart trouble. The charting did not indicate any complaints of chest pain, and no family member could corroborate any complaints of chest pain. •

Fair market value of legal nurse consulting services

© 2009 The Medical-Legal News 

By Pat Bemis

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