Medical malpractice cases are considered one of the hardest types of cases for a plaintiff to win. Cases involving infection are some of the most difficult med mal cases. In other words, the hardest of the hardest. We have had success in these cases when the health care provider, nurse, hospital, nursing home, etc. fails to discover infection timely and fails to act once they do find it.
Below is a case involving those issues.
I. BASIS FOR CLAIM
On July 15, 2010 plaintiff was admitted to Regional Medical Center with sepsis caused from an infected dialysis catheter. She passed away at that hospital on July 24, 2010 as a result of complications from the sepsis.
Before her July 15, 2010 admit to the hospital, Mrs. M had been a resident at Amelia Manor Nursing Home and undergoing weekly dialysis treatment at the FMC Dialysis Center. A nurse at the FMC Dialysis Center noted redness at the site of the catheter on a visit of July 14, 2010 and made an appointment to have the catheter removed the following day; however, that nurse did not notify a physician of her findings and did not notify the nursing home of her findings. The nursing home never discovered the redness/infection on its own.
FMC Dialysis Center’s policy and procedure as well as standard nursing practices required that a doctor be notified of the redness/infection when it was first discovered on July 14, 2010. This was not done.
Amelia Manor’s policy and procedure and standard nursing practices required that the nursing home discover the redness/infection through its own daily skin inspections. This was not done.
- FMC Dialysis Center breached the standard of care in failing to notify a doctor of the redness/infection when it was discovered on July 14, 2010.
- Amelia Manor Nursing Home breached the standard of care in failing to perform skin inspections which would have led to the discovery of the redness/infection.
- As a result of the foregoing breaches in the standard of care, plaintiff lost the chance of a better outcome and/or the chance of surviving the infection.
This is a legal proceeding. This panel is being asked to apply their knowledge and skill regarding the medical issues herein within the context of Louisiana Statutory Law. The law requires you to first make a determination as to whether the defendants breached the standard of care. If the panel finds there was a breach, the next step is to decide whether that breach caused any harm.
The undersigned counsel would like to caution this panel against putting the cart before the horse. Often times, panels will address the causation issue first and work backwards from there to next decide whether there was a breach. This is not proper. The attorney chairman can provide this panel with the specific statutory language. In a legal proceeding, it is imperative that the letter of the law be followed. Again, you should address first whether there was a breach in the standard of care and second, whether this breach caused any damage.
This two-step approach is extremely important in the case of plaintiff. The evidence to be discussed below and perhaps the main evidence submitted by the defendants, will reveal that Mrs. M had end stage renal disease and as such, she did not have a long life expectancy. Our law recognizes that even sick and dying individuals can be the victims of malpractice. Plaintiffs argue that the substandard care by the defendants (failing to timely discover/treat her catheter infection) caused her death. However, even if this panel does not believe this substandard care was the sole cause of death, it still may find Mrs. M suffered damages as a result of the substandard care. Under our law Mrs. M is entitled to the “chance of a better outcome” and/or “lost chance of survival”. The attorney chairman can explain this legal concept further; however, it means in its most basic terms that even if Mrs. M lost only the chance of a better outcome and/or survival because of the failure to timely discover/treat the catheter infection, she is entitled to damages under our law. The best example is a patient with cancer who prior to discovering the cancer has an x-ray which is misread. A subsequent x-ray (for example a year later) reveals the cancer but now the patient has lost the chance of treating that cancer for the last year and their chance of surviving the cancer is now diminished.
II. BASIC FACTS
M was a 66-year old female with a primary diagnosis of End-stage Renal Disease. She resided at Amelia Manor Nursing Home. Her past medical history included Bipolar Disorder, Hepatitis C, Type II Diabetes, COPD, Hyperthyroidism, Valvular Heart Disease, and Congestive Heart Failure.
In treatment of her renal disease, Mrs. M was transported a couple of times a week to the facility of defendant, FMC Dialysis Center. Nurses’ Notes from Amelia Manor indicate that on July 14, 2010 she was transported to dialysis at 9:15 A.M. (Amelia Manor Nurses’ Note 07/14/10 attached herewith as “Exhibit A”) At the dialysis center Mrs. M was seen by nurse Don T, R.N. Nurse T noted that the “catheter insertion site and above is red…” His note goes on to state that the Vascular Access Center was telephoned and that the patient would have the catheter removed tomorrow. (FMC Dialysis Note of 07/14/2010 attached herewith as “Exhibit B”) Thereafter Amelia Manor Nurses’ Notes indicate that at 2:00 P.M. on 07/14/10 they were called by the dialysis center to say that the resident would have her catheter removed at 9:30 A.M. the following day. The next note reads that at 9:20 A.M. on 07/15/2010 Mrs. M was transported to the Vascular Access Center. At 10:30 A.M. on 07/15/2010 Amelia Manor’s notes read that the Vascular Access Center called to inform them that the site was infected and that Mrs. Mouton was being sent to Southwest Medical Center.
The procedure note from the Vascular Access Center is attached herewith as “Exhibit C”. Dr. Kyle Smith noted that the catheter was removed from the right internal jugular vein and Dr. Smith listed a post-operative diagnosis and impression of “catheter related sepsis.” His details of the procedure also include: “the patient was overtly septic, hypotensive, tachycardic and hyperventilating. Catheter was removed and through a large amount of purulent material. Catheter tip cultured. Patient was transferred via Acadian Ambulance to Southwest Medical Center.”
Upon presentation to the Regional Medical Center of Acadiana Mrs. M was seen by Dr. Felicia Ward. Dr. Ward’s History and Physical are attached herewith as “Exhibit D”. Dr. Ward noted the suspected sepsis and ordered the appropriate consults. The reports of Drs. Agostino Ingraldi, Roderick Clark and Walter Dwayne Brown are attached herewith as “Exhibit E” in globo. Attached herewith as “Exhibit F” is a Progress Note from Dr. Ward dated July 18, 2010. Dr. Ward describes that Mrs. M suffered Respiratory Failure due to sepsis and COPD. She also noted Thrombocytopenia which she felt resulted from a combination of the Sepsis and Chronic Liver Disease.
Unfortunately, although Mrs. M made brief improvement, she eventually succumbed to the sepsis. (Attached herewith as “Exhibit G” is a copy of the Death/Discharge Summary from Dr. Christopher Novak dated July 24, 2010)
III. FMC DIALYSIS CENTER BREACHED THE STANDARD OF CARE
It should be obvious to this panel that the nurse at FMC Dialysis who observed the redness/infection of the catheter site on the morning of July 14, 2010 had a duty to report that finding to a physician. This was not done and as such, is clearly a breach of the standard of care.
Attached herewith as “Exhibit H” is a copy of the relevant excerpts of FMC’s Policy and Procedure Manual on the issue. For convenience, this counsel has labeled the pages 1 through 12 at the bottom right-hand corner. At Page 3 of the FMC Policy and Procedure excerpts this panel will note “Paragraph 9” which requires “Evaluate the patients vascular access.” and notes the purpose of this evaluation as, “To check for patency, abnormalities and/or signs/symptoms of a vascular infection.”
At Page 4 of the FMC Policy and Procedure excerpts the paragraph numbered as “2. Guidelines for Nursing Assessment” reads “Significant changes in the patient condition that are reported by the patient or observed by the patient care staff should be brought to the immediate attention of the physician and documented in the patient’s medical record.”
The need for addressing skin changes on the patient is again emphasized in the FMC Policy and Procedure excerpts on Page 5 at Paragraph k. On Page 6 of those excerpts the FMC Staff is instructed to “2. Notify the patient’s physician of any significant changes or problems.”
Pages 7 through 12 contain the identical instructions as above when evaluating the patient post-dialysis.
Attached herewith as “Exhibit I” is the deposition of Dr. Felicia Ward. Dr. Ward discusses her observations regarding Mrs. M at the Regional Medical Center. In her deposition she discusses her opinions regarding the breach of the standard of care. This panel can read the deposition in its entirely; however, it is clear that Dr. Ward thought it was wrong to wait 24 hours to address the infection.
IV. AMELIA MANOR BREACHED THE STANDARD OF CARE
Mrs. M was a resident at Amelia Manor and as such, she was to have daily skin inspections to cover not only infections at the site of her dialysis catheter but decubitus ulcers and similar complications. Assuming these skin inspections were being performed properly, it begs the question: Why didn’t the nursing home staff discover the redness at the catheter site either before or after Mrs. M went out to her dialysis appointment on the morning of July 14, 2010?
As this panel may be aware, nursing homes are heavily regulated by both State and Federal law. In particular, the Federal law is codified under the Omnibus Budget Reconciliation Act (OBRA). Under 42 CFR 483.20(k) the facility is required to maintain a comprehensive care plan for the resident. That regulation notes that “The facility must develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident’s medical, nursing and mental and physcosocial needs that are identified in the comprehensive assessment.” The requirement for this care plan would have addressed Mrs. M’s dialysis catheter and the requirement that it be monitored by the staff for possible signs of infection. This was not done.
42 CFR 483.65 charges the facility with the duty to maintain an infection control program. This duty encompassed the obligation to discover infections particularly in those prone to infection and to address it appropriately. This was not done.
Mrs. M would have been highly susceptible to pressure sores. 42 CFR 483.25 required the facility to monitor her skin for breakdown. This would have included daily skin inspections and the charting of redness and/or signs and symptoms of infection. This was not done.
In the case of Amelia Manor their breach of the standard of care is established by what’s not in their charts. It is a case of res ipsa loquitur. There is no dispute Mrs. M had redness/infection at her catheter site. This was charted by the FMC Dialysis nurse and eventually by the hospital staff at Regional Medical Center. The fact that it was never discovered by the nursing home responsible for her day-to-day care is an inexcusable breach of the standard of care.
V. CLOSING REMARKS
There is no question that both of the defendants, FMC Dialysis and Amelia Manor Nursing Home breached the standard of care owed to Mrs. M. No doubt, both defendants will attempt to bombard this panel with arguments that Mrs. M was a very sick lady. This is not disputed. However, under our law, even those who are sick and dying can be the victims of malpractice and suffer damage.
If this panel follows the law it must find that both defendants breach the standard of care. Thereafter, there is no question Mrs. M lost the chance of a better outcome and/or chance of survival by the delay in treatment caused by the defendants’ substandard care.
GUILLIOT & ST. PÉ, LLC
KENNETH ST. PÉ
La. Bar Roll No. 22638
428 Jefferson Street
Lafayette, Louisiana 70501