Excessive Dosing, Inadequate Monitoring Blamed in Death

Improve your management of migraine patients and lower your malpractice risk by performing a full assessment and following evidence-based guidelines to choose appropriate agents. In any case in which high-dose narcotics must be administered to abort a high-­intensity migraine, a jury will expect the patient to be carefully monitored for respiratory depression until his/her sensorium is fully cleared following the agent’s peak effect.

Simply put, opiates must not be given in ambulatory settings in which the patient is expected to be discharged after 20 to 30 minutes of observation. This medication is not a flu shot, and the plaintiff’s attorney will hammer this point home if your narcotized migraine patient leaves your practice setting and steps in front of a vehicle. Protect the patient and avoid malpractice risk. —DML

Woman Given Morphine Despite Well-Documented Allergy
A 66-year-old Utah woman underwent surgery at the defendant hospital. The defendant surgeon ordered morphine to be administered following surgery—despite documentation in the patient’s record that she was allergic to morphine, and despite the fact that she was wearing a wristband indicating that she was allergic to morphine. The morphine was administered by hospital nurses over the course of several hours.

The patient became asystolic about 14 hours after receiving the first dose. She was revived but had suffered anoxic brain injury. She died two days later.

The decedent’s son-in-law alleged that he had seen a hospital employee remove the wristband indicating her allergy to morphine and throw it into the wastebasket; the son-in-law retrieved it.

The plaintiffs also claimed that a review of the medical record showed that the word “morphine” had been erased under the section entitled “Allergies.” This was discovered in a comparison of the hospital records with identical records supplied by one of the defendant doctors. In that doctor’s records, the word “morphine” was included.

OUTCOME
According to a published report, a confidential settlement was reached.

COMMENT
Because the settlement was confidential, we don’t know what the payment was—but we can be sure it was substantial.

Jurors abhor attempts to cover up mistakes, even when the jury pool is relatively conservative. Instead of viewing the matter as an error, jurors will impute the worst motives and will exact significant punitive damages. In Utah, for example, where this case occurred, punitive damages are not permitted unless the plaintiff can show by “clear and convincing evidence” that the defendants acted maliciously, with intentional fraudulence, or with reckless indifference toward the rights of others (Utah Code Ann §78-18-1).

This may be a case in which the clinician and staff succumbed to the stress of the moment and acted poorly and unprofessionally. Nevertheless, the staff members’ actions to cover up the mistake, by discarding the patient’s wristband that specified the allergy and erasing the note of the patient’s morphine allergy in the medical record, cause problems far beyond the initial mistake.

Because the malicious act (the cover-up activity) occurred after the fact, it did not directly injure the patient and could not form the basis for punitive damages in a malpractice action. However, the cover-up activity may be the basis for punitive damages for the family’s derivative “intentional infliction of emotional distress” claims. Generally, this type of claim must involve conduct that would prompt the average person hearing the facts to exclaim, “Outrageous!” That test is met here.

If presented with a case that may result in malpractice liability exposure, do not lose your head, blow your cool, or act rashly. Always act in the best interest of the patient and let the record reflect your efforts to protect the patient. Do not use the medical record for defensive discussion out of step with normal charting practices. Chart directly, dispassionately, and professionally, and avoid embellishment or hyperbole. Never alter, destroy, or conceal records.

Furthermore, do not react defensively or with hostility, and do not discuss the case openly during or immediately after the incident; any statements you make may be directly admissible against you or others as evidence. Do not initiate an “incident report” or otherwise “write up” a fellow worker: These documents are business records that will be discoverable by a plaintiff’s attorney, and they can be used against you, the facility, and your peers.

Likewise, the patient’s bedside is not the place for emotional discussions; there, the patient’s well-being must be the only concern. Instead, use the special process that was created to candidly and confidentially discuss matters of patient quality of care: the peer-review process. This process offers an appropriate setting to challenge treatment, question decisions, express remorse or misgivings, and cry, if needed. Ultimately, the peer review process is designed to improve patient care, and the plaintiff’s attorney cannot force disclosure of these discussions. If the plaintiff’s attorney asks questions about the substance of a peer review committee meeting, defense counsel will object on the basis of peer review privilege and block that inquiry.