By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services
(2004-2013)
California Hospital Medical Center
Los Angeles
Kristin Kyle de Bautista, Esq.
Los Angeles
News: On Nov. 9, 2022, a jury awarded more than $68.6 million to a Florida woman after determining four critical care physicians were responsible for the catastrophic brain damage and other injuries she suffered following an electrolyte imbalance. The plaintiff sustained lifelong brain damage after a bout of severe hyponatremia, or low blood sodium, in 2017.
The verdict included $2.9 million in past medical expenses, $15 million in future medical expenses, $750,000 in lost earnings capacity, and $50 million for pain and suffering. The verdict was apportioned among the critical care physicians who treated the plaintiff following her collapse.
Background: In 2017, a 20-year-old woman experienced diabetes insipidus, an uncommon condition that can cause an imbalance of fluids in the body. The patient’s roommate found her unresponsive on the bathroom floor. She was taken to a Tampa-area hospital with a severe electrolyte imbalance. Normal blood sodium levels are roughly 135 to 145, but the patient’s level was 116 — a severe case of hyponatremia.
The patient received saline treatment at the hospital, which increased her sodium level to 132. However, the initial treating physician administered another round of saline before receiving the results. The patient’s sodium spiked to 177 before coming down. Days later, her levels skyrocketed to 180 — the highest level the laboratory could measure.
Over the next few weeks, several treating physicians made further mistakes that increased the patient’s sodium level. A physician’s order for desmopressin were not carried out by subsequent providers. The patient was left with profound brain damage, permanently bedridden, and in a minimally responsive state.
The 14-day trial largely focused on what caused the patient’s brain damage. The defense contended the brain damage stemmed from pre-existing autoimmune encephalitis, arguing the defendants met their standard of care in responding to the patient’s unique confluence of conditions. Counsel noted encephalitis is dangerous and puts the patient at risk of brain herniation, which the patient experienced a week after admission. “She had a disease since she was 2 years old, an autoimmune disease that caused her to be diagnosed with it in 2016 and that brought her to the hospital in 2017, and notwithstanding the best care these doctors could give her, they couldn’t slow it down,” defense attorneys argued.
The plaintiff’s attorneys argued her injury was caused by an initial failure to properly treat her sodium levels, which preceded a series of medical errors across days of care. They noted the medical records demonstrated the plaintiff’s low sodium level was overcorrected. The plaintiff’s expert witness noted overcorrection of sodium levels, not autoimmune encephalitis, caused her brain injury. Sodium changes such as this are “cataclysmic,” the plaintiff’s attorneys concluded.
What this means to you: Before considering the legal aspects of this case, providers should understand a patient’s chart should be thoroughly and completely reviewed throughout treatment. In this case, it is clear on at least several occasions providers either did not notice the information in the medical record, or they did not review test results (i.e., sodium levels). They also failed to administer medications ordered by another practitioner (i.e., desmopressin).
The communication issues between all involved care providers are significant. It is critical for the medical record to reflect all aspects of communication. Federal regulations require laboratory professionals to communicate critical lab values to treating physicians and nurses.If reported to nursing staff, those nurses are required to inform the ordering and attending physicians of the results within a specific amount of time, usually 30 minutes. The lab staff must document the name and position of who they contacted and when. Nurses also must document the name of the physician they called, when they called, the physician’s response, orders received, and any additional information shared.
If, as in this case, a physician does not respond with what a nurse considers a reasonable response, the nurse should activate the chain of command within the nursing department to inform a supervisor or another involved physician, who can determine if additional steps are needed. This must become a permanent part of the medical record. It is reasonable to expect a physician who orders a test to seek the test results.
Physicians can veer away from what other professionals might feel is appropriate care, but this decision must be shared with all providers so their involvement works in harmony with the primary care plan. From a legal perspective this case also highlights the importance of experts for malpractice litigation and finding the right expert for the case — particularly where the question is causation. Since medicine is a highly skilled and highly specialized field, it is critical for an expert to possess the requisite skill, knowledge, and experience to testify about the issues.
In this case, the critical malpractice was related to the patient’s fluctuating sodium levels, and ultimate brain damage. With the patient’s history of an autoimmune condition and diabetes insipidus, she was at increased risk for overcorrection of sodium in her blood. However, as the defense experts noted, there also was evidence indicating high sodium levels may have been induced on purpose to treat the actual problem, rather than just the sodium level symptoms. The patient’s diagnosis both on admission to the hospital and on discharge 3.5 months later was autoimmune encephalitis. Experts argued the real danger was brain swelling, and induced hypernatremia shrinks the brain. Experts pointed out only one “sliver of [the plaintiff’s] entire clinical picture” was examined, and it was the “wrong sliver.” During the patient’s hospital stay, there was no evidence of osmotic demyelination syndrome — a condition related to sodium — in clinical, laboratory, radiology, or neuropathology records. Meanwhile, there was abundant mention of her autoimmune encephalopathy.
In a malpractice action, retaining the right expert is critically important for care providers. An unbelievable expert, or an unqualified expert, can be fatal to care provider’s defense. Evaluating and challenging an opposing party’s expert may be a viable defensive strategy. Here, while the jury ultimately accepted the version proffered by the plaintiff’s experts, a full and effective challenge to those opinions, accompanied by a reasoned alternate opinion as to causation, may be the difference in successfully defending a malpractice action.
A final lesson from this case is the significant size of the verdict, and the breakdown of the award. Of the $68.6 million awarded, most was for the patient’s pain and suffering: $50 million. The patient’s past and future medical expenses represented approximately $17.9 million. While that sum is sizeable, it is less than half of the $50 million that the patient was awarded for pain and suffering. Often, juries are empowered with broad discretion over these types of damages. A different jury could have awarded half as much, or a quarter as much.
Malpractice litigation is inherently unpredictable, partly because of the jury’s discretion. Regardless of the strength or weakness of a defendant’s case, it is important to evaluate and pursue settlement discussions while defending the litigation. There are many different potential paths to settlement, whether through formal mediation or direct discussions between counsel. Either way, it is likely the defendants in this case could have settled for far less than $68.6 million rather than placing their fate in the hands of a jury. A significant settlement offer that would have made the patient whole from her medical bills while also providing substantial compensation for pain and suffering could have prevented this eight-figure verdict — and any negative publicity. Providers should closely consult with counsel about options for alternative dispute resolution to prevent these sizable verdicts.
REFERENCE
- Decided Nov. 9, 2022, in the 13th Judicial Circuit of Florida, Case Number 2019-CA-009248.
Providers should understand a patient’s chart should be thoroughly and completely reviewed throughout treatment. In this case, it is clear on at least several occasions providers either did not notice the information in the medical record, or they did not review test results. They also failed to administer medications ordered by another practitioner.
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