Medicolegal Issues

Premature Infant Erroneously Deemed Nonviable

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David M. Lang discusses the pitfalls of allowing prehospital personnel “excessive latitude” in determining when resuscitation efforts should terminate. In a second case, he outlines the discrepancies between a patient’s presentation at the emergency department and his coworkers’ subsequent reports of his illness onset—details that might have made a difference.


Premature Infant Erroneously Deemed Nonviable
The plaintiff mother was six months pregnant with her first child when she miscarried at her home in Massachusetts, and an ambulance was called. The EMTs helped the woman to a stretcher, then went to retrieve the fetus from the bathroom floor. The infant was seen moving its head, and the EMTs summoned ALS to the scene. The infant was placed in a small box. The ALS personnel visually assessed the infant and determined that it was “nonviable.” No fetal heart check was conducted in the field.

The mother and fetus arrived at the hospital 17 minutes after the ambulance was called. At the hospital, a nurse noticed that the fetus was warm and had a heartbeat. The infant was taken to the special care nursery and placed under a warmer, where resuscitation efforts began. The infant was later transported to another hospital’s neonatal ICU for further care and treatment but at six weeks of age died of brain damage due to oxygen deprivation.

The plaintiff claimed that the EMTs should have provided evaluation and treatment for the infant and that they lacked proper training to determine the viability of a newborn. The plaintiff also claimed that placing the infant inside a plastic bag inside a box with a lid further deprived it of oxygen.

A settlement of $1 million was reached.

This case illustrates the perils of allowing prehospital personnel excessive latitude in determining when resuscitation efforts should terminate. Unless death is obvious, vigorous resuscitation and expeditious transport must be undertaken.

In most jurisdictions, “obvious” death requires clear evidence of death (eg, rigor mortis) or a clearly nonsurvivable injury (eg, decapitation, fully transected trunk). In cases where death is not evident under regional Emergency Medical Services guidelines, resuscitation efforts must be full and robust, continuing until medical control orders them to cease.

Medical control refers to medical direction given to responding prehospital personnel; it may be “online” or “offline.” Online control refers to direct clinician-to–prehospital provider direction via radio or telecommunication means, whereas offline control refers to indirect guidance via preestablished protocols and guidelines. In cases in which responding personnel are uncertain whether the indicators of death are met under existing offline protocols, resuscitation efforts should begin and proceed until online medical control orders those efforts terminated.

Jurors will expect an ambulance to move swiftly to the scene, with EMS personnel providing prompt stabilization and rapid transport to the hospital. Jurors will view premature decisions to “count a patient out” harshly.

To be fair, transporting a patient with little chance for survival presents a burden to the immediate community. While transporting such a patient (and for some time immediately following arrival at the hospital), the ambulance is out of service and unavailable to other patients requiring transport who stand a better chance of survival. However, jurors will expect a patient with even a slim chance for survival to be given that chance.

Those who are incontrovertibly deceased should not be transported via ambulance. —DML

Aortic Dissection Misdiagnosed as Abdominal Pain and Hypertension
A 35-year-old Illinois man experienced sudden-onset severe abdominal pain at work. An ambulance was called. His co-workers described him as crying and writhing on the floor, with difficulty breathing and profuse sweating. The ambulance report described abdominal pain and cold, pale, diaphoretic skin but normal vital signs.

At the hospital emergency department (ED), the triage nurse noted mid-abdominal pain that felt like cramping, normal vital signs, and skin that was pink, warm, and dry. The defendant emergency physician, Dr. M., noted that the patient described moderate abdominal pain in the epigastric area. Dr. M.’s initial impression was gastritis or pancreatitis, but he ordered a cardiac work-up to rule out acute coronary syndrome. Cardiac enzyme levels were normal, but ECG results were abnormal and consistent with cardiac ischemia or hypertension. A chest x-ray showed an enlarged heart, which was consistent with the patient’s known history of hypertension.

The man’s co-workers, who visited him in a hallway in the ED, stated that the department was very busy. They stated that the patient was complaining of chest pain and spitting up blood, and that hospital personnel were paying him little attention.

The patient was given a “GI cocktail,” after which he vomited and reported feeling better. Dr. M. reevaluated him, noted that the patient reported no more abdominal pain, and discharged him with a diagnosis of abdominal pain and hypertension.

At discharge, the patient was instructed to follow up with a health care provider the following day for his hypertension and enlarged heart. According to a nurse’s note, the patient ambulated without difficulty at the time of discharge. The friend who picked him up, however, claimed that he was still in significant pain and had trouble walking to her car.

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