Infant comes out of surgery quadriplegic: was hospital liable?

CASE ON POINT: Bradley v. Southern Baptist Hosp. of Fla., Inc., No. 1D05-1816 (Fla.App. 10/25/2006) So.2d -FL

ISSUE: A child born with congenital heart defects underwent cardiac surgery to address the condition within one year after his birth. However, postoperative episodes with blood flow problems ultimately rendered the child a quadriplegic, with the brain function of an infant. Guess who was alleged to be responsible for the condition?

CASE FACTS: Brian Bradley, Jr. (the child), was born with congenital heart defects. He was admitted to Southern Baptist Hospital of Florida for remedial surgery less than one year after birth. During surgery, two catheters were implanted into the heart, allowing various fluids and medications to be infused directly into the heart. The catheters were covered with sterile gauze dressing at the wound site. Following surgery, the child experienced problems with blood flow and low oxygen levels, and his cardiac surgeon performed emergency surgery the next morning to insert a pulmonary artery shunt. The child was monitored throughout the day by Nurse Wells and the surgeon. The child had an elevated temperature, low oxygen levels, and poor blood flow throughout the day. At 5:30 p.m., the surgeon felt the child was stable. The surgeon left the hospital but remained in contact with nurses. At 7:00 p.m., Nurse Harris took over from Nurse Wells. Nurse Harris assessed the child, noted that the dressings around the catheters were saturated, and reinforced the dressings with more gauze pads. She charted all assessments, reported them to the surgeon, and tested the child's glucose level. Because the child's glucose level was extremely low, she called the surgeon, who instructed her to check one of the catheters leading into the heart. Nurse Harris reported that she could not get a blood return. The surgeon instructed her to administer all medication through a catheter on which she was able to get a blood return. The child's condition continued to deteriorate. The surgeon returned to the hospital. The child had no pulse when he arrived. The surgeon began CPR. The child's heart started. However, the child suffered a catastrophic brain injury. The child is a quadriplegic with the brain function of an infant. Brian and Markesha Bradley, the child's parents, sued the hospital individually and as parents and next friends of the child. The Circuit Court, Duval County, entered judgment for the hospital. The plaintiffs appealed.

COURTS OPINION: The Court of Appeal of Florida affirmed the judgment for the hospital. The court held, inter alia, that the plaintiffs failed to prove that the hospital was negligent. Thus, the court found the hospital not guilty of malpractice. The plaintiffs raised three issues on appeal. However, the court found that the plaintiffs failed to preserve their right to appeal the issue as to whether the hospital impermissibly argued that the plaintiffs will receive tree medical services. Nevertheless, the court heard and decided the plaintiffs' remaining two issues. The first issue was whether the trial court erred in instructing the jury on the "borrowed servant" doctrine. The court decided that, as a matter of law, the borrowed servant doctrine did not apply in the case. Accordingly, the court determined that the trial court erred in giving this instruction to the jury. However, the court found it to be harmless error and not prejudicial to the plaintiffs. Thus, the plaintiffs were not entitled to a new trial on that issue. The second issue was whether the hospital's attorney's improper conduct (notwithstanding the trial judge's instructions to the jury to disregard the attorney's remarks), entitled the plaintiffs to a new trial. The court held that the comments were not so pervasive and egregious so as to prejudice the jury's ability to fairly assess the evidence in the case. Accordingly, the court concluded that the plaintiffs failed to demonstrate that the comments were so egregious that they entitled the plaintiffs to a new trial.

LEGAL COMMENTARY: In their motion for a new trial, the plaintiffs did not specifically list all of the allegedly improper comments, which they listed in their appeal. There is a basic premise in the law that if a party fails to raise an issue on a ruling by a trial judge, he cannot raise that issue-for the first time-on appeal. There were several issues wherein the plaintiffs failed to preserve their rights to argue issues on appeal because they failed to preserve their rights to do so by failing to timely object and challenge the rulings of the trial judge. Thus, the plaintiffs were foreclosed from pursing those issues on appeal. Could the plaintiffs have prevailed had they preserved their rights to appeal? The importance of having experienced attorneys on both sides of cases cannot be overemphasized!