On The Docket
David B. Brushwood, BSPharm, JD
Many hospitalized patients are patient recipients of care as they allow the hospital staff to decide what treatment to provide. Yet when health care professionals are admitted to a hospital, they may impatiently request that a specific treatment be provided for a condition that they have self-diagnosed. A recent case from Minnesota suggests that such requests should be given serious attention.
Background
On November 18, 2020, a pharmacist was admitted to the defendant hospital with “shortness of breath, fever, weakness, and fatigue.” The pharmacist presented with “community acquired pneumonia.” The pharmacist “immediately and repeatedly” told hospital staff that “he believed he had bacterial pneumonia.” The pharmacist’s wife “repeatedly reminded hospital staff that her husband believed he had bacterial pneumonia,” and the wife “repeatedly asked hospital staff what they were doing to test for and treat it.”
Without conducting any testing, the hospital staff diagnosed the pharmacist with COVID-19 and “viral COVID pneumonia.” They administered “antiviral medications and anti-inflammatory immunosuppressants to treat the condition.”
On November 23, 2020, the hospital staff began administering antibiotics to treat the pharmacist for bacterial pneumonia. The antibiotics were discontinued after 28 hours and restarted 33 hours later.
On November 27, 2020, the hospital staff tested the pharmacist for bacterial pneumonia. He tested positive.
On December 2, 2020, the pharmacist suffered a cardiac arrest. The pharmacist was transferred to another hospital where he died on December 23, 2020.
The pharmacist’s wife sued the original hospital, alleging negligence for failing to diagnose the pharmacist’s bacterial pneumonia upon his admission and for failing to treat the bacterial infection appropriately throughout his time at the hospital. The wife alleged that the hospital’s negligence “caused the husband’s bacterial infection to spread throughout his body and caused his death.”
The hospital moved for dismissal of the lawsuit based on immunity under the federal PREP Act. The trial court granted the motion and dismissed the wife’s lawsuit. The wife appealed.
Rationale
The appellate court acknowledged that a defendant is entitled to PREP Act immunity when: (1) the treatment at issue is a covered countermeasure; (2) the defendant is a covered individual, corporation, or association; and (3) the plaintiff’s claim bears a causal relationship to the administration of the covered countermeasure.
The wife contended that her lawsuit was based on the hospital’s failure to diagnose her husband’s condition, not on the administration of a covered countermeasure. She claimed that her husband’s death was caused by the hospital’s failure to appropriately treat her husband with antibiotics.
The court agreed that the wife’s lawsuit focused on these failures and not on the administration of a covered countermeasure. The court concluded that the lawsuit “does not allege a causal relationship between the administration of covered countermeasures and the decedent’s death.” The alleged medical negligence claim was not subject to PREP Act immunity. Dismissal of the lawsuit was reversed, and the lawsuit was reinstated.
Takeaways
Patients who are admitted to a hospital do not have a right to insist on being treated with a requested medication for a self-diagnosed condition. Health care professionals must adhere to a standard of care that requires a differential diagnosis and an individualized treatment plan. The patient’s history and previous experiences should be considered in this process. Many patients can report useful information about themselves to facilitate appropriate patient care.
This case may be an example of “frequency bias” where repeated exposure to a factor increases the likelihood that it will be identified through familiarity. The case may also be an example of “recency bias” where observers tend to over-emphasize the importance of recent events when making judgments.
This lawsuit is one of many that may have resulted from the “COVID chaos” that typified clinical care in late 2020. However, even in times of a global pandemic, it is important to treat patients individually. ■