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Malpractice: Why I would have sided with the plaintiffs


Although the author risked a lawsuit, she decided to speak up about the communication failures that may have contributed to this baby's death.


Malpractice: Why I would have sided with the plaintiffs

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Choose article section...The emergency room is completely unprepared Kayla's parents reluctantly consider a lawsuit Focusing on the positive brings unexpected benefits

Although the author risked a lawsuit, she decided to speak up about the communication failures that may have contributed to this baby's death.

By Susan S. Wilder, MD
Family Physician/Scottsdale, AZ

The page startled me while I was dropping off my daughter at day care. One of my patients was paging me directly, which was unusual. Her 5-month-old daughter, Kayla, had been lethargic since early that morning and had taken only 4 oz of formula in the past 24 hours. "I don't want to be a nervous mom, but I'm really starting to get worried," she said.

Kayla had been a completely normal baby until two weeks earlier, when she'd been admitted to a children's hospital for an episode of vomiting and lethargy. She had been treated for dehydration, ruled-out for sepsis, then released. I'd spoken with the pediatrician who cared for her in the ICU and discussed the differential diagnosis including seizure, cardiac problems, apnea, metabolic disorders, as well as sepsis and dehydration.

Although Kayla was sent home with monitors, several of the items in the differential diagnosis weren't evaluated or mentioned in the discharge paperwork. How many times had I, similarly, recorded an inadequate discharge diagnosis like "sepsis, ruled out" or "r/o MI" rather than the more appropriate diagnosis of "lethargy" or "chest pain" with a full differential spelled out?

On follow-up, a week after her hospitalization, Kayla looked fine, except for her muscle tone. She wouldn't bear weight on her legs and couldn't lift her head off the table when prone; accomplishments she had easily shown just a few weeks prior at her well-child visit. Kayla's mom, Jane, said the nurses at the hospital had noted the poor tone and scolded her for "holding the baby too much." But no mention of tone was made in the physician's notes.

I called a pediatric neurologist to discuss Kayla's exam and arranged follow-up with him for metabolic evaluation and EEG. A head CT and lumbar puncture had already been done. We decided that readmission wasn't necessary—a decision we would both later regret.

The emergency room is completely unprepared

Answering the page, I advised Jane to call 911 immediately and, if stable, Kayla would be transported to the children's hospital. If not stable, she would be brought to a community hospital where she would be stabilized for transport to the specialty facility. I then called the emergency physician at our community hospital to explain Kayla's differential diagnosis, and advise him to get pediatric advanced life support (PALS) materials ready.

Uncomfortable with pediatrics, the ED physician said he was going to route the ambulance directly to the children's hospital (a 40-minute drive in the best of traffic). I asked him to page me immediately if the patient arrived in the emergency department, and said that I would be happy to help.

Unfortunately, Kayla's parents thought it quicker to drive directly to the community hospital. There the infant was triaged as "nonurgent" by a young man who never even looked at her. While I was making rounds assuming this family was safely on its way to definitive medical care, they were sitting in an empty waiting room.

Twenty minutes after Kayla arrived, the ED paged me. I responded quickly and found her comatose on an exam table with monitors hooked up but no oxygen or IV lines. The monitors showed agonal respirations and a heart rate dipping into the 50s.

A nurse was standing with her back to the baby getting demographic information from the parents, completely unaware of the gravity of this child's condition. The emergency physician had not seen the child. I immediately called a code, and my resident and I started basic life support and PALS while the terrified parents were hustled out of the room.

Two anesthesiologists and two pediatricians responded to the code, but only one of them was trained in PALS. The emergency physician never got involved. None of the PALS guidelines or materials had been gathered despite my advance warning. Later, I would find the PALS poster up on the wall hidden behind a large cabinet.

We ran the code for over an hour, including starting an intraosseous line when no IV access could be obtained, defibrillation, and running through the full gamut of medications. Unfortunately, we lost this beautiful baby girl who, just five short months before, I had helped usher into this world.

Kayla's parents reluctantly consider a lawsuit

Anger, guilt, heartache, and numbness all flooded me at once. After a tearful, but mutually supportive, session with the family, I documented the misadventure. I then spoke to the pediatric neurologist as well as our group's attorneys. Married to an attorney, I had always taught my residents to seek legal counsel on any patient encounter with a poor outcome—and this clearly met the criteria.

The attorney's advice—to keep in close contact with the family, to empathize and show compassion for their suffering without being overtly apologetic or accusatory, and to communicate carefully—seemed reasonable. Although I was angry about several aspects of Kayla's medical care, I kept this in check for a more appropriate outlet.

In too many medical crises, I'd witnessed physicians lashing out and blaming other members of the health care team, making themselves look ridiculous and making a bad situation worse.

I'd been close to Kayla's parents, and remained so. Having cared for them through the pregnancy and their daughter's early infancy, I enjoyed that truly comprehensive, whole-family, continuous relationship unique to family practice. I was thankful for this alliance, especially at Kayla's funeral, which diverted the family's anger from me. I'm not sure I could have borne it. My own guilt and sadness were punishment enough.

However, I was not surprised when the couple approached me to discuss legal action. "We don't want you to be involved, Dr. Wilder, but we are angry about what we feel was negligence and have decided to speak to a lawyer."

I replied, "I was there when Kayla was born, I cared for her throughout your pregnancy and her entire life, and was running the code when she died. There is no way I could 'not be involved.' " However, I completely understood and supported their decision to seek legal counsel, knowing I would have to be named in the suit. I would have done no less had Kayla been my daughter.

Focusing on the positive brings unexpected benefits

I decided to put the fear of litigation aside and focus on positive actions I could take for this family—and for my own peace of mind. It was most critical to maintain communication, availability, and empathy. Also important was to convince the family of the need for an autopsy. Although the initial one was inconclusive, as was a second opinion at another lab, I was advised by a pediatric geneticist to send samples to Baylor University in Texas.

This special testing, not done routinely (though I think it should be for any SIDS or questionable pediatric death), gave us our answer. Kayla had LCHAD (long-chain 3-hydroxyacl-CoA dehydrogenase) deficiency, a rare metabolic disorder known to bring about lethargic episodes after any illness causing hypoglycemia. At the time of Kayla's death, this disorder inevitably resulted in permanent brain, liver, and heart damage and death at a young age.

Unfortunately, many families with such disorders lose several children to SIDS before a definitive diagnosis is made. Some endure allegations of child abuse. The diagnosis made it obvious that, although we could have temporarily averted Kayla's death had we expedited her workup, the final outcome would have been devastating regardless.

Kayla's parents decided not to pursue the lawsuit. Damages and proximate cause would have been difficult to prove. More important, the diagnosis gave the family closure and reassurance that they did not cause their child's death, except through genetic misadventure.

I was shocked to learn the hefty autopsy costs would have to be borne entirely by the grieving family. Fortunately, I was able to convince my employer to cover some of these costs as a risk management investment. It was also the right thing to do. Attorneys note that families generate lawsuits at two critical times: first, when there's poor communication from the responsible physician after the initial bad outcome, and second, when they get their bill. Kayla's family was very appreciative of being spared this additional trauma.

The final critical action I took was perhaps the most important: I provided formal feedback to our community emergency department and to the doctors and nurses who cared for Kayla during her initial hospitalization.

In medicine, our systems for constructive feedback are poor or nonexistent. I find this profoundly sad and, I think, responsible for much of the public's diminishing confidence in the medical system. Unfortunately, many physicians, having endured the verbally abusive feedback common to medical training, don't have any concept of what constructive feedback looks like, much less how to give it.

Yet when I met with the staff at the two hospitals to discuss what we all could have done differently and how to improve our systems and communication, I was well-received. And the discussion resulted in immediate quality improvements. These included improvement in physician communications at the children's hospital, PALS training for all community hospital emergency personnel, and ED triage system improvements.

When I decided to provide feedback to the hospitals, I took a calculated risk and told Kayla's parents what I was doing. Their reaction? Extreme relief. Their main motivation in seeking litigation, they explained, wasn't revenge, but rather to prevent a similar fate for another family. Thanks to my discussions with the hospitals and the improvements they instituted, Kayla's parents realized that the lawsuit had no further purpose. It would only prolong their agony.

Fortunately, this family, and our relationship, has survived and thrived. I have since delivered their two healthy boys, one of whom is a carrier for the condition that killed his sister.


Susan Wilder. Malpractice: Why I would have sided with the plaintiffs. Medical Economics 2002;9:53.

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