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CHD and the Law: Medical Malpractice Part II

Oct 17

Posted by: ACHA
10/17/2013 10:43 AM  RssIcon

By Michael Pernick

This blog series will feature a story involving congenital heart disease and the law. The blog posts may discuss contemporary or historical court decisions, laws or regulations, or other legal issues that relate to CHD. These posts are purely for entertainment and educational purposes and are not legal advice. Any opinions expressed in this series of posts are solely those of the author and do not represent the Adult Congenital Heart Association. The exact dates and names of the parties involved in this matter have been altered. This is the second part in a two-part series about medical malpractice; the first part can be read here.

About three years ago I developed a serious fever that did not go away with over-the-counter medicine. After two days, the fever had worsened and I went to a local clinic. When I told the doctor that I was born with a congenital heart defect, he followed the proper standard of care: He took a blood sample and sent it in for priority testing. Within 12 hours, he called me and told me I had an infection in my bloodstream and needed to go the emergency room immediately. I was quickly diagnosed with endocarditis, a bacterial infection in my heart. It took two months of extremely powerful antibiotics to eliminate the infection. Infective endocarditis can be fatal. I survived with no damage because the doctor in the local clinic followed the proper standard of care.

I recently read a 2007 decision from a District Court in Arkansas that brought me to tears. Gerard Martin was born with a congenital heart defect very similar to mine. He had one successful surgery when he was born and a second surgery a year later – exactly like me. Several months after his surgery, he began to develop a serious fever – exactly like me. However, unlike my physician, Gerard’s physician, Dr. Bryant, failed to follow the standard of care and didn’t order any blood work. By the time the endocarditis was discovered, it was too late for antibiotics – Gerard needed an emergency open heart surgery to remove the vegetation on his valve. The surgery was not successful and Gerard passed away. Gerard’s family sued Dr. Bryant for medical malpractice and won.

Dr. Bryant had ample opportunities to follow the proper standard of care. Gerard was first seen by Dr. Bryant on March 4, 2001, after running a 100.3 degree fever for days. Dr. Bryant thought Gerard probably had a gastrointestinal virus and did not order any testing.

Two days later, Gerard’s mother called Dr. Bryant’s office and explained that Gerard was not getting better. Dr. Bryant did not ask to see Gerard.

Two days after that, she called again and explained there had been no improvement in Gerard’s condition. Dr. Bryant agreed to see Gerard several days later, but still did not order any blood work.

On March 14, after Gerard’s condition continued to deteriorate, Gerard’s mother again contacted Dr. Bryant and was told by the office that further evaluation was not necessary.

Finally, on March 17, with Gerard’s condition quite severe, his mother took him to the ER. In the early morning of March 18, he was diagnosed with endocarditis. A large vegetative infection was surgically removed from his tricuspid valve on March 19 but during the surgery, a blood clot formed and went to his brain, causing a severe aneurysm. Gerard died in the arms of his grandmother on March 25.

The legal test used in this case was the same as the test used in Part I of this two-part series on malpractice. (1) There must be an applicable standard of that care for the specific condition. (2) There must be a departure from that standard of care. (3) There must be proof that the departure caused the injury.

Here, all three elements of the test were satisfied. (1) There was an applicable standard of care for the specific condition; medical experts testified that given Gerard’s history, Dr. Bryant should have ordered blood tests. (2) Dr. Bryant’s failure to order the test was a deviation from the applicable standard of care. (3) The court found that there was a causal connection, since Dr. Bryant’s failure to order a blood test was the proximate cause of Gerard’s death. In other words, had Dr. Bryant followed the proper procedure, Gerard would have likely recovered.

Because all three elements of the test were satisfied, the court ruled in favor of Gerard’s family and awarded more than $1.3 million for pain and suffering, loss-of-life, and his parents’ mental anguish. No amount of money could compensate the Martins for their loss. However, I hope that some good could come from this heartbreaking story. Perhaps Gerard’s death could serve as a cautionary tale to remind doctors treating CHD patients to take the utmost of care.

The citation to the case discussed in this blog post is McMullin v. U.S., 515 F. Supp. 2d 914 (E.D. Ark. 2007).

Michael Pernick was born with tetralogy of Fallot and grew up on Long Island, New York. He is currently a second-year student at NYU School of Law. He attended college at Wesleyan University and worked for several years on political campaigns and issue advocacy campaigns in New York, Connecticut, and Boston.

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