Confronting Medical Error

The Case

Court records indicated that Torajee Bobbett lingered at Mercy Hospital for a number of hours, after a day-long episode of vomiting, suffering from a bowel obstruction that was never diagnosed. He was subsequently transferred to Hershey Medical Center, having experienced cardiac arrest and irreversible brain damage, which led to his death. Court papers indicated that the Hershey physicians quickly diagnosed the bowel obstruction upon Torajee's arrival, and that Mercy Hospital had allegedly violated numerous policies and procedures in its treatment of the 4-year-old prior to transfer.

Shortly after testimony revealed the production of altered records, a settlement was negotiated in the total amount of $11 million. In a press conference following announcement of the settlement, Joseph Quinn, the family's attorney, noted, “The sad story is that we should not be standing here. If the hospital had come forward to Tukishia and Billy and told them what had happened, I would never have been involved.” According to newspaper accounts, Mr. Quinn suggested that had the hospital told the family of its faults in the boy's treatment, the case would have been settled years before without the unfortunate ramifications that developed at trial. “It was never about getting the highest amount [of money], it was about seeking justice,” Quinn said.

PA's Legislature Imposes Disclosure Requirement

Torajee Bobbett's treatment took place in July 2001. Approximately 1 year later, the Pennsylvania legislature adopted Act 13, the Medical Care Availability and Reduction of Error (MCARE) Act in an effort to reform the state's medical liability system and to address significant issues of medical liability and patient safety. Act 13 has two major components: 1) It put in place various malpractice liability reforms, which modified the existing process; and 2) It created a new “patient safety” section designed to help reduce the number of medical malpractice incidents and to improve safety for all patients. The MCARE Act established a patient safety authority (PSA) to review medical errors and make recommendations on improving patient safety. Hospitals are required to report medical errors for serious events to the PSA as they occur. In addition, hospitals are now required by law to notify patients of a serious event within 7 days of that event. Under the Act, a “serious event” is an event or situation which produces an unanticipated injury: 1) requiring additional health care services; or 2) ultimately resulting in a death or that otherwise compromises patient safety.

The duty to notify patients of an adverse or serious event is not new. Previously, such disclosure had been encouraged by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and by various professional societies. Act 13, however, mandates such disclosure as a matter of statutory law. It is also noteworthy that the duty of disclosure rests upon the hospital, even in cases where a physician may have caused the critical event.

Effects of the Law

The exact chronology of events surrounding the treatment of Torajee Bobbett at Mercy Hospital was not developed during the limited presentation of evidence at trial, as the case was resolved by settlement. The presentation of a 4-year old boy with a 24-hour history of vomiting certainly suggests that appropriate diagnostic tests should have been completed within a 9-hour period of time in the Emergency Department. If appropriate testing and/or treatment was not completed either as a matter of hospital practice or because of human error, the requirements of Act 13 would today compel Mercy Hospital to disclose such events to the family within 7 days of the occurrence.

Many health care attorneys on both sides of the Bar have experienced cases in which patients or their families expressed regret that a more open disclosure process did not take place at the time the events of malpractice or negligence occurred. With the passage of Act 13, hospitals have clearly been mandated to address such incidents both internally and externally, by communication to the patient or family involved.

During the past 6 months, this writer has had direct experience with two cases in which the health care providers involved, recognizing deficiencies in the treatment of a patient, have proceeded quickly toward settlement of the two matters without unnecessary litigation. In both cases, counsel representing the family members have expressed their appreciation for the candid acceptance of responsibility by the health care providers. In both cases, the hospitals' acceptance of responsibility and acknowledgment of potential error seems to have fostered meaningful discussions among all parties to the issue, who are now working toward resolution of the claims outside the traditional litigation context.

Conclusion

It is unfortunate that the Bobbett litigation did not have the opportunity to apply Act 13's mandatory disclosure requirements. Had that been the case, recent experience suggests that a trial might have been avoided and the case potentially resolved years earlier. This is not intended as a criticism of Mercy Hospital, its physicians or its lawyers for the fact that the case developed as it did through discovery and trial proceedings; only the parties involved have full knowledge of the course of litigation which culminated in a multi-million dollar settlement. The events in Wilkes-Barre, however, do provide an opportunity for counsel representing health care institutions to once again consider the manner in which Act 13 was intended to avoid such results and to expedite the resolution of cases in which evidence of professional negligence is clear.

Similarly, in states where disclosures such as those mandated by Act 13 are not required, hospitals, health care professionals and their counsel would do well to consider early discussion with patients and their families about medical errors. The injured parties' feelings of betrayal are often an integral part of their decisions to sue or to work toward reasonable settlements. Consideration of those feelings could help both sides in a medical malpractice case immeasurably.

In September of this year, a medical malpractice suit pending in Wilkes-Barre, PA, generated significant publicity as the case proceeded to trial. In that case, plaintiffs Tukishia and William Bobbett filed suit against Mercy Hospital and several physicians following the death of their 4-year-old son in the hospital's emergency room. The child, Torajee Bobbett, died after spending more than 9 hours at the hospital on July 19, 2001 into July 20, 2001, without obtaining proper treatment, according to documents filed in the court record. Several aspects of plaintiffs' claim related to alleged deficiencies with the Emergency Department's policies, procedures and staffing at the time Torajee was treated.

The case garnered additional media coverage, somewhat sensational in nature, when the Chief Executive Officer and another top official of the hospital reportedly testified that they produced dozens of altered documents to the plaintiffs' attorneys during the discovery phase of the litigation — and did so knowingly, with the knowledge of their attorneys. This article does not intend to address the unfortunate allegations and courtroom testimony related to this issue, as a complete record has not been developed, and the hospital's defense counsel — whose reputation and integrity were held in high regard prior to the lawsuit — has not yet had a fair opportunity to address the allegations against him. (Indeed, the attorney/client privilege would probably prevent him from doing so).

Reviewing settlement of the litigation, the Bobbett family's attorney was quoted as stating: “This is a death that never should have occurred. Some 20 of the finest nurses and doctors across the country reviewed these records and said this conduct was not only negligent, this conduct was outrageous, this conduct was indefensible.”

The Case

Court records indicated that Torajee Bobbett lingered at Mercy Hospital for a number of hours, after a day-long episode of vomiting, suffering from a bowel obstruction that was never diagnosed. He was subsequently transferred to Hershey Medical Center, having experienced cardiac arrest and irreversible brain damage, which led to his death. Court papers indicated that the Hershey physicians quickly diagnosed the bowel obstruction upon Torajee's arrival, and that Mercy Hospital had allegedly violated numerous policies and procedures in its treatment of the 4-year-old prior to transfer.

Shortly after testimony revealed the production of altered records, a settlement was negotiated in the total amount of $11 million. In a press conference following announcement of the settlement, Joseph Quinn, the family's attorney, noted, “The sad story is that we should not be standing here. If the hospital had come forward to Tukishia and Billy and told them what had happened, I would never have been involved.” According to newspaper accounts, Mr. Quinn suggested that had the hospital told the family of its faults in the boy's treatment, the case would have been settled years before without the unfortunate ramifications that developed at trial. “It was never about getting the highest amount [of money], it was about seeking justice,” Quinn said.

PA's Legislature Imposes Disclosure Requirement

Torajee Bobbett's treatment took place in July 2001. Approximately 1 year later, the Pennsylvania legislature adopted Act 13, the Medical Care Availability and Reduction of Error (MCARE) Act in an effort to reform the state's medical liability system and to address significant issues of medical liability and patient safety. Act 13 has two major components: 1) It put in place various malpractice liability reforms, which modified the existing process; and 2) It created a new “patient safety” section designed to help reduce the number of medical malpractice incidents and to improve safety for all patients. The MCARE Act established a patient safety authority (PSA) to review medical errors and make recommendations on improving patient safety. Hospitals are required to report medical errors for serious events to the PSA as they occur. In addition, hospitals are now required by law to notify patients of a serious event within 7 days of that event. Under the Act, a “serious event” is an event or situation which produces an unanticipated injury: 1) requiring additional health care services; or 2) ultimately resulting in a death or that otherwise compromises patient safety.

The duty to notify patients of an adverse or serious event is not new. Previously, such disclosure had been encouraged by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and by various professional societies. Act 13, however, mandates such disclosure as a matter of statutory law. It is also noteworthy that the duty of disclosure rests upon the hospital, even in cases where a physician may have caused the critical event.

Effects of the Law

The exact chronology of events surrounding the treatment of Torajee Bobbett at Mercy Hospital was not developed during the limited presentation of evidence at trial, as the case was resolved by settlement. The presentation of a 4-year old boy with a 24-hour history of vomiting certainly suggests that appropriate diagnostic tests should have been completed within a 9-hour period of time in the Emergency Department. If appropriate testing and/or treatment was not completed either as a matter of hospital practice or because of human error, the requirements of Act 13 would today compel Mercy Hospital to disclose such events to the family within 7 days of the occurrence.

Many health care attorneys on both sides of the Bar have experienced cases in which patients or their families expressed regret that a more open disclosure process did not take place at the time the events of malpractice or negligence occurred. With the passage of Act 13, hospitals have clearly been mandated to address such incidents both internally and externally, by communication to the patient or family involved.

During the past 6 months, this writer has had direct experience with two cases in which the health care providers involved, recognizing deficiencies in the treatment of a patient, have proceeded quickly toward settlement of the two matters without unnecessary litigation. In both cases, counsel representing the family members have expressed their appreciation for the candid acceptance of responsibility by the health care providers. In both cases, the hospitals' acceptance of responsibility and acknowledgment of potential error seems to have fostered meaningful discussions among all parties to the issue, who are now working toward resolution of the claims outside the traditional litigation context.

Conclusion

It is unfortunate that the Bobbett litigation did not have the opportunity to apply Act 13's mandatory disclosure requirements. Had that been the case, recent experience suggests that a trial might have been avoided and the case potentially resolved years earlier. This is not intended as a criticism of Mercy Hospital, its physicians or its lawyers for the fact that the case developed as it did through discovery and trial proceedings; only the parties involved have full knowledge of the course of litigation which culminated in a multi-million dollar settlement. The events in Wilkes-Barre, however, do provide an opportunity for counsel representing health care institutions to once again consider the manner in which Act 13 was intended to avoid such results and to expedite the resolution of cases in which evidence of professional negligence is clear.

Similarly, in states where disclosures such as those mandated by Act 13 are not required, hospitals, health care professionals and their counsel would do well to consider early discussion with patients and their families about medical errors. The injured parties' feelings of betrayal are often an integral part of their decisions to sue or to work toward reasonable settlements. Consideration of those feelings could help both sides in a medical malpractice case immeasurably.