Medical Malpractice

Kenneth I. Kolpan, JD (Editor)

MEDICAL MALPRACTICE is a controversial area of law because, in part, a jury comprised of laypersons (although recent state legislation is increasing the percentage of professionals in the jury pool) determines whether or not medical care fell below the standard of acceptable medical practice. Unlike peer review, utilization, or quality assurance, evaluation in the courtroom of medical personnel actions is by nonmedical individuals. A recent Texas Court of Appeals decision illustrates this phenomenon in a case involving a young girl who died after sustaining a head injury.

On February 19, 1983, one day short of her third birthday, Tawnya Henry fell off a kitchen cabinet, striking her head on a tiled floor. She was rushed to a local hospital at 10 A.M. where roentgenograms showed she had sustained a fractured skull. She was transferred to McAllen Methodist Hospital at 11:20 A.M. One of the defendants, J.W. Caldwell, MD, suspected an intracranial bleed and ordered a computed axial tomography (CAT) scan. He found that the hospital's CAT scan was inoperable. The only nearby CAT scan was in a local physician' office, but the physician was away. Caldwell then transferred this patient to his partner, another defendant, A. Felici, MD. Felici saw Tawnya at 12:45 p.m. He transferred her to the intensive care unit of the hospital.

After neurosurgical consultation, it was decided at approximately 2 P.m. that Felici would arrange for Tawnya's transfer to another hospital where there was an available CAT scan. Felici left the hospital and placed a resident in charge of Tawnya. During the next hour, Tawnya's left pupil expanded from an intracranial bleed. Despite her condition, the hospital was unable to effectuate her transfer because a nurse was not immediately available to accompany Tawnya. A nurse did arrive, but the nurse did not have the capability to intubate the patient, should that have been necessary. (The ability to intubate was a requirement for the transfer; when the defendant, Felici, decided to go with the patient during the transfer, there was no ambulance available.) Finally, the patient's mother telephoned for an ambulance from the hospital waiting room. At 4 p.m. Tawnya was taken by ambulance to Valley Baptist Hospital where she arrived at 4:45 p.m. She was given a CAT scan; a massive head bleed was diagnosed. She underwent unsuccessful brain surgery. Four days later Tawnya died.

At the trial, experts for both sides agreed that had Tawnya been given a CAT scan earlier and been seen by a neurosurgeon earlier, she would have survived. The jury was to decide whether Caldwell or Felici were negligent in caring for Tawnya and whether or not their negligence caused Tawnya's death.

The jury decided that it was the negligence of the hospital, not the doctors, that caused the child's death. The Court of Appeals upheld the jury's verdict because there was evidence that Caldwell's delay in the transfer was not the proximate cause of Tawnya's death. The jury further found that Felici had promptly ordered her transfer, but hospital personnel failed to carry out his order.

The jury's decision shows that with the aid of expert testimony from both sides, the jury was able to sort through the medical protocol at one particular hospital for the diagnosis, treatment, and transfer of the head injury patient and assign responsibility for her untoward death. The jury may have properly performed its task, but the jury's decision was of little help to the family. It had already settled with the hospital for $250,000 before the trial and was suing only the two doctors.