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Last week I wrote about how Meredith Grey responded to Derek’s death and how some aspects of it didn’t ring true to me. This week, I’d like to take a look at whether the hospital committed medical malpractice. To do so, I am going to apply real law to an admittedly fake situation. So the question is, did the hospital commit medical negligence and would Meredith have a wrongful death lawsuit against it and the doctors for Derek’s death? (Please note, this post is based on Pennsylvania law.)
The first thing we need to explore is what exactly is required for a medical negligence case? Let’s take a look and apply the factors to Derek.
A duty of care simply means that those involved in providing medical treatment were expected to treat Derek with the appropriate level of care for his needs. Derek was a patient in the hospital so it owed him a duty of care. The fact that the hospital tried to reject Derek as a patient is irrelevant. Once the hospital agreed to accept Derek as a patient, it (and its employees) had an obligation to provide proper medical treatment.
This part of the rule involves what is called the medical standard of care. Everywhere in the United States, doctors, hospitals and nurses are all expected to follow certain medical standards. In this case, there are two major questions relating to Derek and the treatment he received.
A. Should the ER doctor have ordered a CT scan on a stable patient who clearly had a brain injury?
B. Was it ok for the neurologist on call to take almost 90 minutes to get to the hospital, especially when the hospital had its own policy of no more than 20 minutes?
The answer for A is, arguably, yes. Now, the doctor can argue that treating the other injuries were more important, but it was made clear to us that Derek was stable. Under such circumstances, identifying the nature of the brain injury is critical.
The first question any ER doctor will ask when he sees a brain injury is where does a patient sit on something called the GCS or Glasgow Coma Scale. Derek’s symptoms, as far as I can tell, showed he had a pretty severe injury.
There is a Canadian CT Head Trauma Rule which is a common basis for the medical standard of care in brain injuries. And according to that rule’s criteria, Derek should have had a CT scan. There are other standards as well, and under all of them, Derek should have had a scan.
Why CT Scans Matter
Why is a CT scan important? The reason is that when it comes to brain injuries proper treatment has to happen right away or the result can easily be exactly what happened to Derek. A brain bleed. When the brain bleeds, it swells and presses against the skull. This pressing causes substantial damage, well beyond the harm caused by the initial injury. Derek’s brain bleed caused his brain to swell and push against his skull. If the doctors had been aware of the bleed and thus the risk of swelling, they could have performed a procedure to give the brain space to swell, decreasing the amount of damage Derek experienced.
The answer for B is clearly no. It is unacceptable for the on call neurologist to take 90 minutes to arrive at a hospital to treat an emergency head injury. It is even more unacceptable when the hospital has its own policy in place, requiring a response within 20 minutes. Hospitals must follow their own policies, in addition to following the medical standards of care.
As noted, moments count in head injuries. Any competent doctor knows this. Whether the neurologist could have helped Derek is another question, since at the point at which he was called, the damage might already have been done. This brings us to the next piece of analysis in a medical malpractice case.
The next question is whether the fact that the doctors failed to order a head CT and that the neurologist didn’t show up in time caused the damage that Derek suffered. This, actually is a difficult question. In a real world case, the lawyers in my firm would need to look at Derek’s medical records in an effort to figure out what happened when. There are a couple of questions we would have to answer.
A. Would Derek have suffered a brain injury anyway?
B. How serious would that brain injury have been and would Derek have died anyway?
As far as A, Derek had already suffered a brain injury. He was bleeding from the head and unable to speak. This is how we know that he ought to have had a CT scan. The question then is B, how serious was the injury? Would Derek have died anyway? Would proper treatment have saved his life? If proper treatment would have saved Derek’s life, how serious would the brain damage have been?
Let’s assume, for a moment, that Derek’s brain injury wasn’t very serious. That he wouldn’t have entered a vegetative state but for the failure to do a CT scan and provide the proper treatment. Even mild brain injuries can cause serious problems. As a result, the defense lawyers in a lawsuit, would argue that Derek’s career was over regardless of whether he lived or died. This sort of argument would relate to the dollar amount of the financial damages. On the other hand, Derek was a young man and would have likely had many years to live. So, if Meredith’s wrongful death attorney could show that Derek would have lived, the damages would still be substantial. If Meredith’s lawyers could show that Derek’s injuries were very minor up until he suffered the brain bleed, and he would have been able to work, the damages would be even greater.
How Do Lawyers Prove 2 and 3?
You might be wondering how Meredith’s lawyers would prove issues 2 and 3. The answer is that, not only would the lawyers review Derek’s medical records, but they would hire practicing doctors to write a report about the proper standard of care and the relationship between the violation of that standard to Derek’s injuries. They would also speak to the extent of Derek’s injuries and what they would have been had he received proper care versus what they ended up being. This case would very much be a battle of the experts. On Meredith’s side, the experts would likely state that Derek’s injuries would have been minor but for the mistakes. On the hospital’s side, the experts would state that Derek’s injuries would have been very serious anyway. They would argue that he would have died no matter what, and even if he hadn’t, that his brain injury would have been so serious that he would never have been able to work again.
The goal of the plaintiff is to maximize the damage while the goal of the defendant is to minimize them. The experts would be critical for both sides.
Certificate of Merit
In fact, before the case could even go forward, the medical expert(s) for Meredith’s lawyers would have to be willing to sign something called a certificate of merit. This is a document that states that the doctors violated the medical standard of care and caused injuries to the patient. Without this document there can be no wrongful death suit based on medical malpractice in most states.(There can be no medical malpractice suit either, regardless of whether the person died, without the certificate.)
3 and 4 might seem a bit redundant, since both talk about injuries. But there is always a question of whether the patient was injured. In this case, we know Derek was injured. The question is, was he injured by the failure of the doctors or by his car accident. So in this case, question 4 isn’t the issue. The issues that will be argued about in this case are questions 2 and 3: standard of care and the relationship between those violations to Derek’s injuries as well as the extent of those injuries but for the failure of the doctors.
I asked one of the lawyers in my firm, Anita Pitock, if she though that the doctors in Derek’s case committed medical malpractice. She felt they did, but, she said she would want to see the medical records (of course.) She also wondered about what level of damages Meredith’s lawyers would be able to prove in her wrongful death case. Anita also told me that she is done with Grey’s Anatomy.
I also asked Dennis Abrams, the head of our litigation team, the same question. Dennis was surprised they had killed off McDreamy (he had to confirm the nickname with me.) He said he hadn’t seen the show in years and hadn’t seen this particular episode. However, when I explained the issue with the CT scan and the failure to arrive for 90 minutes, he said that he would be comfortable arguing a violation of the standard of care under those circumstances.
In the end, what I can tell you is this. If Meredith called my firm and asked for representation, we would be, at the least, willing to explore what happened, gather Derek’s medical records and get an opinion from a doctor. Based on what I have seen in my two years at Lowenthal & Abrams, (keeping in mind I am an ethics lawyer, not a medical malpractice attorney) I think such a case would likely conclude with some kind of settlement or verdict for Meredith.
LOWENTHAL AND ABRAMS, P.C.
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