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Failure to Admit in ER Resulting in Brain Damage

CATEGORIES: Emergency Room CASE LOCATION: Allegheny Co., PA. CLASSIFICATION: Substantial Recoveries

The McKean Case

In this case, we represented a John McKean, a 37 year old married man with 3 children, who presented to a hospital ER with severe pneumonia and sepsis. Instead of being admitted, he was negligently discharged, only to return 2-days later in a near comatose state. The result was a 60-day stay in the hospital (mostly the ICU) where it was determined that John suffered a permanent cognitive brain injury from lack of oxygen to his brain. Prior to this incident, John was extremely intelligent, having a degree Penn State and career in Geographic Information Systems. His life was devoted to his family. As a result of this negligence, John now struggles to hold a part-time job as a dishwasher.

The Facts:

John McKean, his wife, and three kids were all sick with flu like symptoms. Although his kids and wife recovered, John continued to be sick. As a result, John’s wife took him to his PCP’s office for an office visit. At his PCP’s office, it was determined that John was hypoxic (89% oxygen saturation level), had an altered mental status, had an elevated respiratory rate, elevated pulse, and was coughing up blood. The PCP diagnosed John with respiratory distress and likely pneumonia, placed John on oxygen, and had a nurse take John directly to a local hospital ER. The PCP documented that John was “acutely ill and needs urgent evaluation.”

After arriving at the hospital ER, John was seen a triage nurse and an ER resident physician. There, it was documented that John was coughing up blood, had bloody fluid draining from his ear, had a dangerously elevated respiratory rate of 42 (16-20 is normal), an elevated pulse of 127 (John was a runner so his normal pulse was in the 60s), that John as disoriented as to time, had been running a fever around 103-104, had chest pain, rib pain, was short of breath, etc. John was continued on oxygen, received IV fluids, given pain medication, and given an inhaler to help him breath. A chest x-ray confirmed that John had pneumonia (an infection). It was noted in the records that a bed was prepared for John, indicating that he was going to be admitted; however, instead, at the end, the attending ER doctor came in to see John and determined that John, who was laid off at the time, was not going to admitted but instead discharged to home with a prescription for antibiotics and an inhaler.

In his dictated summary, the ER doctor noted that John’s vital signs improved during his time in the ER, noted that John was never in respiratory distress, noted that John was never really hypoxic, and also noted that John’s “PORT score is low enough to indicate that he should be able to be treated as an outpatient.” A PORT score, or pneumonia severity index, is a clinical prediction rule that doctors use to calculate the probability of morbidity in patients with community acquired pneumonia. Essentially, 85% of patients with community acquired pneumonia can be treated as an outpatient; however, 15% need to be admitted, monitored, and treated more aggressively (e.g. with IV antibiotics), and the PORT score identifies those 15%.

Although John felt a little better when he was in the ER and on oxygen and getting IV fluids, he immediately felt like he did prior to the ER visit when he was discharged; however, he was told that the antibiotics should start working in about 48-hours and that it was okay for him to be treated on an outpatient basis. After getting discharged, John and his wife went to the pharmacy, had his prescriptions filled, and went home.

Over the next day and a half, John continued to feel the same, continued to be delusional, continued to cough up blood, and continued to be short of breath. His wife then determined that she should take John back to the ER which she did roughly 40-hours after the discharge.

At the ER, it was immediately determined that John was in respiratory distress (like the PCP noted before the ER visit), that he was hypoxic (like the PCP noted before the ER visit), and that he needed to be intubated and placed in the ICU to be emergently treated.

John spent the next 45 days in the ICU where it was determined that John had pneumonia, meningitis, was septic, had critical illness myopathy (widespread muscle pain and weakness and neurological dysfunction), and suffered a hypoxic brain injury (confirmed on MRI, CT, and EEG). It was also determined that John lost some hearing in his left ear and that he suffered a painful shoulder injury as a result of ossification in his right shoulder (i.e. frozen shoulder). John’s pain was so severe that he was receiving strong, daily doses of the opiate pain medication fentanyl (fentanyl is known as synthetic heroin and known for its addictive qualities).

John was eventually transferred to a local rehabilitation hospital for close to three weeks where he received physical and occupational therapy. Neuro-psych testing at the rehabilitation hospital further confirmed that John suffered a severe cognitive brain injury. John was continued on the opiate pain medication fentanyl and discharged with a prescription for the opiate pain medication vicodin.

After his discharge from the rehabilitation hospital, John continued to receive in-home physical and occupational therapy. John continued to struggle with walking, talking, reading, and all essential tasks of daily living. In addition, John’s extreme pain continued and was not relieved with vicodin.

As for John’s brain injury, his treating physiatrist described it as: “ongoing cerebral dysfunction and cognitive impairment which in manifested by agitation, irritability, anxiety, depression, confusion, impulsivity, deficits in abstract thinking, and significant memory loss. He demonstrates decreased motivation and attention to tasks and exhibits lack of understanding of consequences of his actions.”

As a result of the dangerous combination of John’s brain injury, in which he has the impulses of a child, his inability to control his severe pain, and his body’s reliance on strong opiate pain killers, John found himself seeking heroin to help control his pain (note that heroin is an opiate that produces the same affects on the body as fentayl, which as described above is merely ynthetic heroin). Eventually, recognizing that he was addicted to heroin, John entered a substance abuse program, got the treatment he needed, and ended his addiction.

Throughout the next few years, John continued to treat with his PCP, his physiatrist (rehabilitation doctor), a psychiatrist and counselors at a local health facility that helps individuals with mental health and intellectual disabilities, and others. Although John eventually was capable of walking and talking again, his cognitive brain injury not only prevented him from working in his specialized computer field, it prevented him from having any gainful employment in any field.

Neuro-pysch testing done by a doctor at the Defendant hospital roughly 1.5 years after this incident again confirmed that John had a permanent brain injury that affected all aspects of his life, and that John’s brain injury would prohibit him from having any type of gainful employment.

The Lawsuit:

On behalf of John and his wife, we filed suit against the hospital and the ER physician for failing to recognize the severity of John’s illness during his initial presentation to the ER, for failing to contact the PCP that sent John immediately to the ER on oxygen, for failing to accurately perform the PORT score, and for discharging John.

During the deposition of the ER physician, he flatly admitted that he could not even have one a PORT score analysis because he failed to order blood tests which make up roughly half of the PORT score. When questioned why he documented that John’s “PORT score is low enough to indicate that he should be able to be treated as an outpatient”, the doctor answered that he simply “misspoke”. When asked why he didn’t contact the PCP that sent John to the ER on oxygen, he answered that he didn’t know John was sent to the ER on oxygen and rarely contacts other doctors anyhow. When asked if considered sepsis on his differential diagnosis, he answered that he did not despite knowing that John met the basic definition of sepsis because he had known infection (pneumonia), a pulse greater than 90 (127), and a respiratory rate greater than 20 (44). Sepsis, known as blood poisoning, is defined as having an known infection and two or more of (1) body temperature less than 36°C or greater than 38°C; (2) pulse greater than 90 beats per minute; (3) a respiratory rate over greater than 20 breaths per minute; or (4) white blood cell count less than 4000 or greater than 12,000 cells.

Trial / Defenses:

We secured the opinions of an expert ER physician, an expert infectious disease physician, an expert neurologist, and a forensic economist, all who testified at trial.

The defense called an expert ER doctor and an infectious disease physician. At trial, the defenses included:

  • the ER physician did in fact do a PORT score analysis but only half of the analysis was needed because certain initial criteria was not met to go further
  • John never had an altered mental status in the ER; when the resident noted that John was disoriented as to time, the resident must have asked what time it was and John must not have known (despite the resident having no memory of this event)
  • it was okay to discharge John since a few of his vital signs slightly improved in the ER (even though it was only after he was on oxygen for hours and receiving IV fluids)
  • the resident must have made an error when he documented that John had an elevated respiratory rate
  • it was John’s and his wife’s fault for not returning to the ER earlier then they did 40-hours after discharge
  • it was okay to not even consider sepsis, despite John meeting the basic definition for sepsis and ultimately being diagnosed with sepsis, because John’s vital signs improved slightly
  • John never got his prescription filled (despite having a receipt from Rite Aid pharmacy)
  • any brain injury that John had was a result of his short-lived drug addiction which was unrelated to the hospital stay and only the result of John being a longtime drug addict (despite John not having a history of heroin use and records documenting that the heroin use was a result of addiction to fentanyl)
  • John and his wife were untrustworthy because John’s wife had a job once working under the table, John once got ticketing for fighting in college, John had a few traffic tickets, etc.
  • John was never going to be able to work again anyhow because years before, John wrote a comment in an internet chat room (that the defense attorney found) that was critical of his college degree.

The Result:

After trying the case for over one week, unknown to the jury, the parties reached a settlement.