Failure to diagnose pneumothorax in infant--death results.

CASE ON POINT: Bryant v. Levy, No. 07-04-0058-CV (Tex. App. Dist. 7 03/21/2006) S.W.3d-TX

CASE FACTS: Kennalee Bryant was born on December 28, 1999. Oil January 20, 2000, she was taken to her pediatrician, Dr. James Boger, because of congestion, a cough, a stuffy and runny nose, and dehydration. She was diagnosed as having an upper respiratory tract infection for which Dr. Boger recommended fluids and over-the-counter medication. The infant's condition continued to worsen and on January 23, 2000, her mother, Linsey Bryant, was told by the pediatrician to take the child to Northwest Texans Hospital. At the time the infant had difficulty breathing, abnormal lung sounds, including wheezes and rattles, retraction of the lungs, respirations of 80 per minute and an oxygen saturation of 80%. She was diagnosed as having respiratory syncytial virus (RSV). At approximately 6:00 p.m., on January 23, the infant was admitted to the pediatric ward of the hospital and given intravenous and breathing treatments. However, her condition continued to deteriorate. Her retractions on breathing became severe, she began running a temperature, became pale, refused to take fluids and although she was on oxygen and breathing treatments, her oxygen saturation remained low. At approximately 8:51 p.m., Dr. Rolf Habersang, a pediatric critical care doctor and a member of the AAHCS, was consulted. Dr. Habersang examined the child at 9:10 p.m. and assessed her condition as having decreased sensation, poor responsiveness of the lower chest wall, and very decreased air exchange through her lungs. Dr. Habersand transferred Kennalee to the pediatric intensive care unit and gave orders that the breathing treatments be continued and other medications be administered. Because the infant's condition continued to worsen, at approximately 8:00 a.m., on January 24, Dr. Habersang decided to intubate her, placed her on mechanical ventilation, and placed a feeding tube in her. At approximately 10:30 a.m., Dr. Levy assumed Kennalee's care. At 2:50 p.m., as a result of a capillary blood gas test and increased agitation, Levy ordered additional medications. At 4:20 p.m., a blood gas was performed which showed a carbon monoxide level of 78..6%. The normal range for carbon monoxide is 35 to 45. As a result of the increase, levy ordered a change on the ventilator from 20 to 24 breaths per minute and ordered another blood gas to be done at 7:30 p.m. At 5:00 p.m., Shannon Brewster, a respiratory therapist employed by the hospital, "changed the ventilator, setting the tidal volume from 60ccs to 65ccs.'" There was no record of a physician's order for the change. At 5:10 p.m. Brewster also noted that Kennalee had tight wheezing and increasing carbon monoxide after receiving chest therapy. Kennalee's vital signs were taken at 6:00 p.m., although there was no examination. A respiratory therapist came into Kennalee's room around 7:10 p.m., and began to assess her. At 7:20 p.m., the oxygen saturation level dropped to 50%, her heart rate dropped in resuscitation was begun by the nurse and respiratory therapists. Dr. Levy was not at the hospital but was called, gave resuscitation orders to the nursing staff" while driving to the hospital, and arrived some 12 minutes into the code. After resuscitation efforts, a pulse returned. Chest x-rays suggested the presence of air outside of the lungs and in the abdominal cavity, which caused Dr. Levy to believe that Kennalee suffered from a pneumothorax in both lungs through which large amounts of air escaped from her lungs into her chest and abdominal cavities. Continued resuscitation effort were unsuccessful and the child died at 9:10 p.m. An autopsy was performed, which determined that the cause of death was hyaline membrane disease (diffuse alveolar damage), interstitial pneumonia and acute bronchopneumonia. The Bryants brought suit against Dr. Levy and his group as well as Northwest Texas Healthcare System, Inc. The District Court, Potter County, granted the defendants' motion for summary judgment. The Bryants appealed.

COURT'S OPINION: The Court of Appeals of Texas reversed the judgment of the trial court. The court held that the trial court erred in granting the defendants' motion for summary judgment since the plaintiffs' medical testimony that the infant had an undiagnosed and untreated pneumothorax that resulted in cardiac arrest which caused her death was sufficient to defeat the defendants' motion for summary judgment.

LEGAL COMMENTARY: The plaintiffs' expert testimony was key. If the pneumothorax been timely diagnosed it could have been timely treated. That treatment would have resulted in a normal life for the child. Simply put, a timely chest x-ray would have resulted in timely treatment and saved the infant's life!

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to this writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's who in America and Who's Who in the World.