MY MOST MEMORABLE CASE
One CLNC® Service Opened the Door to Many More
by Pam Hollsten, RN, BSN, DABFN, CLNC
"Success is not built on what we accomplish for ourselves.
Its foundation lies in what we do for others." – Danny Thomas
More than two years ago, a plaintiff attorney asked me to help him locate physician experts for a case against a university hospital with no individual defendants named. The case had already been evaluated by two well-known and respected physicians, but due to potential conflicts, one of the experts was unwilling to testify. The attorney felt sure these two experts had identified the major issues in the case, yet before the case was over, I had not only helped him identify major deviations from the standards of care missed by his experts, but also provided a host of CLNC® services that made a big difference in persuading the opposition to settle the case.
As the attorney-client described the facts in our first meeting, it was clear other areas of care had probably contributed to the devastating outcome suffered by the client and his parents. I outlined questions about the actions of the nursing and physician staff at a critical point, and the attorney admitted the physicians had not reviewed the case in that much detail. He offered to send me all the records to review so I could identify other issues and help him locate other appropriate experts. Based on my clinical and consulting experience, I was also concerned about the causation issues in the case. I recommended that he consider additional physician experts to address potential defenses.
My attorney-client seemed unconcerned with the "big picture." However, as time went on, my assistance in pointing out seemingly minor issues strengthened the case immensely and led to a mediated settlement before all experts had even been deposed.
Significant Deviations in an Infant with a Head Injury Were Easy to Recognize
In this case a 9-month-old boy suffered a blow to the head and was admitted to a local emergency department. The parents were distraught, as the injury apparently occurred when the father fell on the infant while rollerblading. Upon triage and initial ER assessment, the child was noted to have an unusual, monotone cry, hypoactive movements and unfocused gaze with disconjugate eye movements. However, the Glasgow Coma Scale (GCS) was recorded as 12. Although there was no evidence of head trauma, the ER physician immediately consulted the pediatric trauma service of a large university hospital.
Within one hour after arriving at the ER, the baby was transported to the university hospital. He vomited once before transport, but the transport team documented stable vital signs, intermittent crying and spontaneous eye opening. The pediatric trauma resuscitation flowsheets documented a GCS of 14 during the entire stay in the trauma section.
The initial CT scan of the head revealed an intracranial hemorrhage with mild hydrocephalus and dilated ventricles. The pediatric neurosurgery service admitted the child to the pediatric intensive care unit with a diagnosis of head injury with subarachnoid bleed. Nursing interventions included neurologic checks and vital signs with continuous cardiac and pulse oximetry monitoring.
A repeat CT scan the following day revealed a subarachnoid hemorrhage with blood in the ventricles and mild hydrocephalus, but no significant change from the admission CT scan. A head ultrasound indicated mildly dilated ventricles and echogenic material suggesting intraventricular hemorrhage. The child was then transferred to the pediatric floor with a diagnosis of closed head injury. Transfer orders included routine vital signs and age-appropriate diet with continuing neurologic checks. The child continued to have episodes of vomiting, and increased irritability not managed by Tylenol.
The next day neurologic checks were decreased to every two hours for 24 hours, then every four hours thereafter, with an order to resume IV fluids if oral intake did not improve. A second head ultrasound done that morning showed increased ventricle size since the previous examination. The ultrasound report notes indicated that the results were discussed with the ordering physician. The nurses continued to document that the infant was increasingly irritable and difficult to console, and obtained an order for morphine and/or Tylenol with codeine. The vomiting episodes continued.
An obvious concern in this case was to rule out the possibility of child abuse. Therefore, an ophthalmology consult was obtained. Interestingly, the physician noted no evidence of retinal hemorrhages, but documented that the child was lethargic, sleepy and holding his head in hyperextension. The physician also documented that the eyes had been dilated, and the effects of the medications would last approximately four hours.
Over the next nine hours, the nurses failed to document any neurologic assessment except that the pupils remained dilated and sluggish. No vital signs or activity levels were documented, but the nurses did comment on continued vomiting. During the evening shift change, the nurse documented contacting the physician on call about the dilated pupils, but noted the physician concluded this was due to the eye drops and did not examine the patient at that time.
Shortly after midnight, the child experienced a seizure and reduced respirations, followed by two more tonic clonic seizures before the house physicians arrived. A head CT now revealed significant enlargement of the ventricles and communicating hydrocephalus. The child was transferred back to the pediatric intensive care unit, where he suffered a prolonged apneic episode and was placed on a ventilator. A ventricular tap was performed approximately five hours after the onset of seizure activity, but he continued to display posturing, a bulging fontanel and downward gaze of both eyes. Three hours later, when the attending physician made rounds, an external ventricular drain was placed with orders to continuously monitor the intracranial pressure.
After prolonged hospitalization with several complications, subsequent neuroradiology studies indicated significant atrophy of the brain due to global hypoxic ischemia with herniation. The child required a PEG tube for feeding and was discharged six weeks later with outpatient physical therapy, occupational therapy, speech therapy and continuing neurosurgery and pediatric ophthalmology care.
I Identified Additional Defendants and Their Deviations
After a careful review of the pertinent facts, I identified more potential defendants in this case. Several residents and nurses did not communicate with each other or the physician staff during significant events. I also outlined specific areas for further research, including the management of and prognosis for pediatric closed head injuries, and appropriate neurosurgical and nursing interventions. Based on additional case facts and my review of the medical records and the expert physician summaries, I then developed the following list of the most important deviations from the standards of care.
The physicians failed to:
Timely diagnose, respond to, monitor, treat and control clear signs of increasing intracranial pressure in a documented subarachnoid hemorrhage type of head injury.
Communicate critical neuroradiological findings with each other and the nursing staff.
Accurately interpret and act upon diagnostic studies and clinical symptoms before the patient's condition deteriorated to an irreversible life-threatening emergency.
Recognize an emergency situation and initiate appropriate treatment and medical interventions in a timely manner.
Properly supervise appointed residents in providing quality and timely medical care.
Issue appropriate medical orders.
Provide for proper nursing care and monitoring capabilities.
The nurses failed to:
Recognize an emergency situation and initiate appropriate treatment in a timely manner.
Notify the physicians of an emergency situation warranting immediate medical intervention.
Complete and document assessments and reassessments of the patient according to his clinical condition and established standards of nursing care.
Formulate and implement a nursing care plan to monitor, continuously assess and evaluate the patient's condition.
Revise the plan and interventions based on the patient's deteriorating medical condition.
Continuously assess and evaluate the patient's response to treatments and medications.
Institute appropriate and accepted nursing interventions in a timely manner.
Recognize significant deviations from the expected normal activity and assessment of a child.
Recognize, interpret and record signs and symptoms requiring notification of the physician.
Obtain, monitor and document neurologic signs and vital signs as ordered by physicians.
Use independent nursing judgment to initiate more frequent monitoring and reassessment when the patient was clearly deteriorating clinically.
Additional CLNC® Services Supported the Plaintiff's Case
Identification and Location of Testifying Experts
Although the attorney contacted me to search for only two physician experts, my initial review revealed that other experts might be needed to address the nursing care provided, the neurologic outcome and the long term care requirements for this neurologically devastated child. Even though the university hospital would be the only named defendant with no individuals named in the suit, I recommended considering a pediatric intensive care nurse, pediatric nurse, neurologist and life care planner in addition to the neuroradiologist and pediatric neurosurgeon the attorney had already asked me to find.
My search for the expert pediatric neurosurgeon was difficult, because the treating neurosurgeon was well known and respected in the field. I researched and contacted numerous physicians. Although all of them believed the case had significant issues, they had conflicts or did not want to get involved. Finally, I found an expert who was willing to review the case. To date, this is the longest and most difficult expert search I have ever undertaken as a Certified Legal Nurse ConsultantCM. That time was well spent since in the process I acquired a healthy list of potential experts for future cases involving a variety of neurosurgical disorders.
In identifying potential defenses, I recommended that a neurologist offer an opinion on causation and the probability that timely interventions could have averted or minimized the devastating end result. I located several neurologists for the attorney to work with; each developed his own conclusions about the case and solidified potential defenses the attorney needed to be aware of. I also found several pediatric nurses, as well as a local pediatric life care planner.
Chronology of Significant Events
From my initial review of the medical records I identified several critical points when clinical data was not communicated or acted upon in a timely manner. The attorney had focused only on the issues initially presented by the two expert reviewers. He underestimated the importance of other clinical information they overlooked. He also had difficulty understanding the importance of subtle changes in neurologic status, irritability and continued vomiting, along with subtle changes reported in the lab results and radiology examinations. I recommended creating a detailed minute-to-minute chronology of events.
This chronology turned out to be invaluable in helping my attorney-client:
Identify specific areas of the care to focus on for developing discovery requests and deposition questions.
Facilitate communication with the experts.
Point out the obvious deterioration in the patient's clinical condition and neurologic status in a clear and understandable manner.
As a CLNC®, I often find that a detailed chronology reveals many issues that may be overlooked in the mounds of medical records. In this case my chronology also helped me commit the sequence of events to memory. When I needed to quickly locate an issue or refresh our memories on details, I reached for the chronology rather than the medical records. I do not believe the attorney appreciated the value of such a chronology until he had it in his hands and worked with it. At the conclusion of the case, he repeatedly indicated how this was one of the most useful services I had provided.
Medical Research
In searching for appropriate experts, I conducted an extensive review of the literature on pediatric closed head injuries, prognostic factors, medical and surgical management of intracranial pressure and pediatric nursing care. This research also helped me identify potential defenses and weaknesses of the case, locate potential experts, research potential opposing experts and educate the attorney about the medical and nursing issues in the case. The anatomy and physiology were particularly challenging for the attorney to understand, and my summary of salient points in the literature helped him grasp what he needed to know and focus on.
Collaboration with the Discovery Process
Immediately after filing suit, the attorney wanted to send interrogatories, requests for production and requests for admission in order to discover additional facts of the case. I recommended specific items to include, and although he did not originally request this assistance with discovery, he eventually incorporated my recommendations into the final versions of the discovery documents.
It was clear from the discovery responses that we had identified the significant issues in the case without revealing our strategies. Furthermore, the responses enabled us to confirm several suspicions about the experience of the nursing staff and the flow of communication between the residents and attending physicians. We identified and confirmed the significant deviations from the standard of care with the responses we obtained.
Assistance with Depositions
Armed with the information obtained during discovery, my attorney-client deposed the nursing staff involved in the child's care, as well as the physician staff. I developed a series of questions for the nurses aimed at determining their experience and the clinical significance of changes in the child's condition. At deposition we learned that the nurse in charge of the child during the most critical time had just graduated from a nursing program. According to hospital policy, she should have had a preceptor during her first month of employment. However, the nurses were short staffed and she was practicing independently that night. This admission, combined with irrefutable changes in clinical condition that were not reported or monitored appropriately, was pivotal to the plaintiff's case.
How My Role Made a Difference in the Outcome
Much to my attorney-client's amazement, the opposing attorney contacted him shortly after these depositions to discuss an amicable resolution. The opposing attorney deposed the plaintiff's neurosurgery expert, but did not call for any other depositions prior to setting a date for mediation. The case settled during mediation.
My attorney-client repeatedly indicated that in his experience as a plaintiff medical malpractice attorney, he had never had a case settle so soon after filing suit. Although he initially doubted whether a CLNC® could help him beyond locating appropriate experts, he rapidly realized how much he depended on me to navigate the medical and nursing issues of this complex and sometimes overwhelming case.
After the case settled, we discussed what he found most valuable in my CLNC® services:
Reviewing the case thoroughly.
Supplying a detailed chronology.
Identifying all the clinical issues to significantly strengthen the case.
Locating authoritative literature to support the deviations from the Standard of Care.
Identifying additional defendants and witnesses initially overlooked by his experts.
Strategizing to develop specific on-target discovery through interrogatories, requests for production and requests for admission.
Most importantly, he directly attributed the speed with which the opposing attorneys initiated settlement to my consultation on the case. I believe his investment in my numerous CLNC® services throughout the case provided the most cost-effective and expeditious method to resolve the case satisfactorily for him and ultimately for his client.
Lessons for CLNC®s
As a result of my participation throughout this case, I developed a deeper appreciation for the attorney's need for the complete scope of CLNC® services I can provide. Many of these were not identified, discussed or requested during my initial conversation with the attorney. I am now more confident and even more committed to educating each attorney about all the CLNC® services I can provide at various stages in the litigation process. Some attorneys need to be educated step-by-step, as in this case, but the effort is worthwhile.
The complex anatomy, physiology and mechanism of injury in this case also provided an ideal opportunity to educate the attorney about the medical issues and the importance of nursing interventions. This particular attorney wanted to know everything there was to know, and I made it my personal goal to see how well I could teach him. Not every attorney feels the need to learn so much about each case; many leave this to their medical experts. In this case, learning as much as he could helped the attorney communicate effectively with the defendants, witnesses and opposing attorneys. He felt they took him much more seriously when he could articulate the importance of clinical information and even pronounce medical terms correctly. The quick settlement proves his belief is on target.
I also learned not to underestimate the value of high-quality discovery. The Vickie Milazzo Institute's CLNC® Certification Program discusses how CLNC®s can assist attorneys with discovery and how often the resolution of a case depends directly on the quality of discovery. The specific issues we raised in drafting interrogatories, requests for production and requests for admission and the wealth of information we obtained from the responses convinced me of the value of maximizing the use of all available discovery tools. As a result, I am quick to point out this case as an example when discussing my CLNC® services with other prospects. My attorney-client agreed to serve as a reference to validate my services.
Based on this attorney's initial request to locate experts, I would never have anticipated working so closely with him for the duration of the case and providing so many CLNC® services. I believe this kind of opportunity presents itself to us on a regular basis. So, let's take advantage of this and learn to anticipate the attorney's unique needs and educate him about our CLNC® services at each stage of litigation.
Pam Hollsten, RN, BSN, DABFN, CLNC, an independent CLNC® in Virginia, owns Hollsten & Associates, specializing in medical malpractice. Pam will lead the report writing workshop at the 2004 NACLNC®Conference.
– Danny Thomas
