David B. Brushwood, BSPharm, JD
Hospitals can be held liable for causing harm to patients either due to the negligence of employed health care professionals (indirect liability) or for institutional negligence (direct liability). In a recent case from Illinois, a jury awarded $42.4 million against a hospital for institutional negligence.
Factual background
A patient was taken to the defendant hospital’s emergency department on a Friday because his intrathecal baclofen pump required surgical replacement. The pump had stopped functioning correctly and the patient was experiencing baclofen withdrawal. The patient’s physician “told the emergency physician about the concentration of baclofen that [the patient] required, which was 2000mcg.” The physician “faxed a document to the emergency department that provided information about the required 2000mcg concentration of baclofen.”
At 9:00 am on the following Monday, the patient’s surgery was scheduled for 1:00 pm. The surgeon wrote in the patient care record, “Obtain baclofen kit from pharmacy!!!!!!!!!!!” He stated that the 11 exclamation points meant “that’s an important step.”
The director of pharmacy testified that it was not until 1:00 pm that the pharmacy received the order for intrathecal baclofen and that the nurse who communicated the order did not know the concentration that was needed. At 1:27 pm, the pharmacy was informed that the 2,000 mcg concentration was needed, but the pharmacy stocked only the 500 mcg concentration. The director located the 2,000 mcg concentration at another hospital and arranged for a courier service to obtain it, but the courier did not arrive with the baclofen until 5:00 pm.
The patient coded at 3:10 pm and was stabilized, but he did not regain consciousness. “It was undisputed that this event was the result of intrathecal baclofen withdrawal.”
Successful surgery was performed at around 5:30 pm and lasted 30 to 40 minutes. The patient was placed on life support, and he died 2 weeks later.
The patient’s estate sued the hospital, alleging that the hospital “allowed a system failure to exist, resulting in the delay of [the patient] receiving his intrathecal baclofen, and/or failed to ensure effective communication among [the patient’s] healthcare providers.”
The hospital appealed the jury verdict for the plaintiff, arguing that the institutional negligence claims “were not true claims of direct corporate negligence, but were predicated on the conduct of medical professionals exercising their medical judgment.”
Rationale
The appellate court first explained that under a theory of institutional negligence, “the law recognizes a duty on the part of hospitals to review and supervise the treatment of their patients, and this duty is administrative or managerial in character.”
The court quoted testimony from an expert witness who explained that “a hospital is a system, meaning a complex series of activities and steps,” and that a system failure occurs “when many things go wrong despite the safeguards built in, resulting in a bad outcome.”
The court reviewed the evidence and concluded that “the plaintiff appropriately employed the theory of institutional negligence to impose direct liability on the part of the hospital.” The court explained, “the facts of this case demonstrated that it was the responsibility of the hospital as an institution to procure the equipment and medication needed by a surgeon in the course of a particular surgery.”
The jury verdict against the hospital was affirmed.
Takeaways
Hospital pharmacies cannot be expected to immediately supply all formulations of all medications in all concentrations at all times. Communication to the pharmacy department is necessary to allow for the timely acquisition of needed medications.
Effective communication systems can facilitate interdepartmental messaging. For example, a systematic communication avenue is necessary when the emergency department learns on Friday that the pharmacy department will need to supply an infrequently used medication to the surgery department on Monday.
Notations in electronic records indicating the need for specific medications should be immediately routed to the pharmacy department so that a sufficient supply of medication can be obtained to meet patient care needs. ■