The Verdict Is In

Claim: Alleged Transfer Denial Cited as Reason for Patient's Death

By Richard Bernard, Patient Safety Manager

On December 2nd a 52 year old female was taken to Hospital-1 (a non-CEP site) by her co-workers, for shortness of breath. At 1500, the patient collapsed in the lobby prior to initial vital signs being obtained.

On physical examination by EP-1 (a non-CEP provider) the patient was morbidly obese at 270 lbs. (height was not charted), in moderate respiratory distress, alert and oriented, cool and clammy. The patient was normocephalic, the examination of eyes, ears, nose and throat were unremarkable. The patient was remarkable for bilateral rales, diminished bilaterally, heart sounds remarkable only for rapid rate. She was asked if she had any previous history of respiratory illness and she denied asthma or emphysema. She stated that she might have congestive heart failure and then experienced a respiratory cardiac arrest at 1512. The physical examination was deferred.

Past medical history was remarkable for undergoing coronary artery-bypass grafting last spring according to a co-worker. Many of them accompanied her to the hospital. Multiple medications were reviewed. There were no known medication allergies. A review of systems inferred from her medication list included insulin-dependent diabetes, coronary artery disease and hypertension.

After her arrest, nasal intubation was initially attempted due to her placement in a bed in the hall way rather than an emergency bay. The attempt was unsuccessful due to a lack of patient cooperation. Efforts were discontinued when the patient became apneic and she was expeditiously transferred to an emergency bay that had been cleared for her.

Subsequent oral intubations were complicated by anatomy. Her tongue was enlarged so EP-1 could not place the tube under direct visualization. The third intubation failed at 1516. A King esophageal obturator airway was placed and bagging began at 1519. The patient had become bradycardic, initial hyperventilation by bag valve mask restored a normal heart rate. She did become bradycardic again and required intravenous epinephrine. After her airway was established a pulse and pressure returned. The patient became markedly hypertensive and was treated with a dose of intravenous Lopressor at 1537 which restored normotensive status: The patient subsequently required multiple doses of Ativan for ventilator control; resumed spontaneous respiratory effort but remained unresponsive to command. The patient was also treated with Benadryl and Decadron for swelling of her tongue.

EP-1 Had Never Placed a King Airway Before

EP-1 testified in deposition that the hospital had a new policy that the King Airway would be the sole rescue technique for intubations. EP-1 had never placed a King Airway before and he does not consider the King Airway to be “definitive airway control.” However, he believed that the patient had “adequate oxygenation and ventilation” with the King Airway.

After the patient’s husband arrived he reported that his wife has had worsening respiratory distress for the past two months and had been to a doctor several times. Her private physician thought she had a virus.

The initial EKG demonstrated a sinus tachycardia, left atrial enlargement, nonspecific intraventricular conduction delay and nonspecific ST and T wave abnormality. Chest x-ray demonstrated near opacification of the right pulmonary lung field and diminished aeration of the left lung field. Arterial blood gas obtained after the patient was able to be ventilated was remarkable for a metabolic acidosis (Anion gap 18.9 mmol/l) modest hyperventilation and a normal p02 on 100% oxygen. Complete blood count was remarkable for a leukocytosis (WBC of 18,440). Cardiac enzyme profile was remarkable only for an elevated myoglobin (197.3 mg/nl). Comprehensive metabolic profile was remarkable for hyperglycemia (Glucose 328 mg/dl) and chronic renal insufficiency (BUN 37 mg/dl, Creatine 3.2 mg/dl and Albumin 3.1 g/dl) with a minimal hypokalemia (Potassium 3.4 mEq/L).

EP-1 Initiated Efforts to Transfer the Patient

Hospital-1 is a small rural facility with limited consultative resources. The patient’s husband was familiar with Hospital-2 (a CEP site). The patient’s cardiologist practiced there. Hospital-2’s call center was consulted at 1530. EP-2 (a CEP provider) advised EP-1 to transfer the patient to a tertiary care center. At 1546 The University hospital’s call center was consulted and EP-1 was advised they would call back. At 1611 the O2 sat was 84. EP-1 then called another tertiary hospital’s transfer center and was consulted at 1613. The cardiologist there recommended contact with the patient's cardiologist prior to transfer for concerns about continuity of care. Hospital-2’s call center was called again at 1620 and the patient’s heart specialist was consulted. At 1632, the patient’s cardiologist accepted the transfer. He charted that the patient’s O2 sats at Hospital-1 “were as low as 84”.

The Phone Call with Differing Recollections

There was a factual issue as to what EP-2 was told by EP-1 during the phone call. EP-2 was given the clear impression that the patient could not be intubated or oxygenated, and was not stable at the time of the call. Some concerns are that before the call with EP-1, oxygenation is noted at 97%; and there is some dispute between EP-2’s recollection and EP-1’s chart, which stated “EP-2 advised transfer to a tertiary medical center”, which EP-2 denies as simply part of a brainstorming question. EP-2 said he would have no reason to not accept the patient, and he never refused transfer. EP-1 recalled the discussion that EP-2 had indicated that the patient may be "too much for my site to handle." EP-2 had denied saying this in his deposition. Most importantly, EP-1 said that EP-2 never refused to accept transfer of the patient, and he signed an affidavit to that effect.

At 1806, the patient was transferred in critical but stabilized condition via air medical service to Hospital-2 for further evaluation and treatment with the provisional diagnoses: Acute pulmonary edema attributed to congestive heart failure. Coronary artery disease status post coronary artery bypass grafting and insulin-dependent diabetes. The O2 sat at hand-off to the air medics was 77.

Opposing Experts Weigh in on the Appropriateness of Transferring the Patient

Plaintiff’s emergency medicine expert opined "EP-2 did not endorse the immediate transfer of the patient to his hospital, instead directing EP-1 to make alternative efforts to secure her airway, and to find an alternative accepting hospital. These alternative efforts imposed on EP-1 by EP-2 led to significant delays in the transfer of the patient to a source of definitive airway control. As a direct and proximate result of these delays, the patient’s unstable and unsecured airway became partially occluded, preventing proper oxygenation. EP-2's failure to accept the immediate transfer of the patient was a deviation from the standard of care and from Federal law. This deviation led to delays that prevented timely protection and stabilization of the patient’s airway.”

Defense’s emergency expert opined “When it appears that the risk of destabilization or death during transfer is high, I have often counseled delay of transfer until the patient can be stabilized. That is not the same as "refusing to accept transfer" of a sick patient. My opinion is that given the information available to EP-2 at the time of his conversation with EP-1, a concern about instability during transfer was reasonable. I would have had similar concerns about transfer with an unstable airway. It is my opinion that EP-2 acted in an appropriate manner. EP-1 appeared to believe the patient was stable enough for transport, but as it turned out EP-2 was correct that the King Airway was not the best option to stabilize the patient. As her O2 sat were 80 prior to transport, but decreased to 40 upon arrival at Hospital-2.” (At hand-off in the ICU air medic’s chart has O2 sat of 78.)

At 1858 the patient was taken to the ICU at Hospital-2 where she was met by her cardiologist. He had arranged for an anesthesiologist to assist with intubation. When she arrived her O2 sat were noted to be in the low 40. The anesthesiologist at Hospital-2 was able to get her intubated using a glide scope. It was also noted she had aspirated. Her eyes were barely reactive and there was no gag reflex. She had significant prolonged hypoxia. After several days in the hospital, the decision was made to remove her from the ventilator and she passed away five days later on December 7.

Experts Disagree on the Cause of Death

Plaintiff’s expert opined that as a direct and proximate result of these delays, the patient's unstable and unsecured airway became partially occluded, preventing proper oxygenation. This period of inadequate oxygenation was prolonged to the extent that it led directly to the patient’s irreversible and devastating brain damage.

Defense’s expert opined the patient had an acute pulmonary illness with white-out of the right lung and marked elevation of the white blood cell count. This probably was an extensive pneumonia, since unilateral pulmonary edema is rare. She presented late in the course of this illness, with respiratory failure. This was complicated by morbid obesity, probable angioedema of the tongue, metabolic acidosis, advanced diabetes with both kidney disease and retinopathy, plus coronary and hypertensive heart disease with reduced ejection fraction. It is likely that she had a fatal illness by the time of her arrival at the emergency room at Hospital-1.

Our Doctor and Hospital Make the Newspaper

On December 17, of the following year, EP-2 learned that a lawsuit had been filed against him. The case was the front page story in the local newspaper. The story named EP-2 and all the hospitals involved. It also went into detail about the EMTALA law and how the defendants had violated its provision. The facts were taken from the plaintiff’s lawsuit complaint. The plaintiff’s attorney was interviewed along with Hospital-2’s spokesperson. No one informed EP-2 prior to the news release. He learned about the lawsuit and related news story from his partners and co-workers when he arrived on shift. 

Questions for the Raffle

The husband pursed the case in Federal court due to the EMTALA violation allegation. Only EP-2 and Hospital-2 were defendants. The husband maintained that EP-2 represented the hospital and had in effect denied the transfer violating EMTALA. He also sued based on professional negligence in that the delay in transfer caused the death of his wife.

1. In your opinion did EP-2 give EP-1 appropriate clinical advice?

  1. Yes
  2. No

2. In your opinion did EP-2 inadvertently violate EMTALA?

  1. Yes
  2. No

A motion for summary judgement was filed on behalf of EP-2 and Hospital-2 to have the case dismissed. This was based on the following three arguments.

  1. There was no deviation from the standard of care in that a doctor patient relationship was not established between EP-2 and the patient at Hospital-1. There was no evidence to support that EP-2 had a duty and therefore there could be no breach.
  2. That EMTALA does not authorize a private cause of action against an individual physician.
  3. That Hospital-2 is not liable for an EMTALA violation as a result of EP-2’s actions, because EP-2 did not refuse the transfer and there is no evidence to support that EP-2 refused the transfer.

3. How do you guess the case resolved?

  1. The court found for the plaintiff and allowed the case to go forward to trial. EP-2 and Hospital-2 subsequently settled.
  2. The court found for EP-2 and Hospital-2 and the case was dismissed.

To answer these questions, click here. By participating, you could win $250 for you and an additional $250 for your site.

The Previous "Verdict Is In"

The January 2016 installment of "The Verdict Is In" involved a 47 year old male who was admitted to the ED observation unit due to dizziness, weakness and an unsteady gait. The next day while in the observation unit, the patient complained of a headache (a new symptom). A CT was ordered demonstrating bilateral cerebellar edema likely due to a tumor. Neurosurgery was consulted and an MRI was done that showed an occlusion of the left vertebral artery. The patient alleged that there was a significant delay in diagnosing his stroke.

  1. In your opinion did EP-1 meet the standard of care on August 12?
    41.38% Yes
    58.62% No
  2. In your opinion was the patient appropriate for the ED observation unit?
    32.76% Yes
    67.24% No
  3. The plaintiff named as defendants the hospital, ambulance company and EP-1. How do you think the case resolved?
    36.84% EP-1 settled the case for nuisance money.
    35.09% EP-1 went to trial and prevailed: the other defendants were dismissed.
    28.07% All defendants were dismissed.

Who Won the Survey Raffle?

The winner of the raffle for the above case was Peter Benson, MD. He practices at John Muir Medical Center, Walnut Creek, CA. Dr. Benson receives a debit card worth $250; his site also receives a debit card worth $250, which can be used for any worthy cause.