Neurological medical malpractice.

The key to litigating these cases successfully is understanding how the neurological injuries occurred and how they could have been avoided.

The difficulty in trying neurological and neurosurgical medical malpractice cases is in attorneys' failure to completely understand the pathologic basis for clients' injuries and how these injuries could have been avoided. Once the attorney understands basic neurological and neurosurgical anatomy, physiology, and pathophysiology, these cases can be effectively screened and successfully litigated.

Neurological and neurosurgical cases involve intracranial processes, such as a compressive ischemic injury or an infection, that adversely affect the brain or spinal cord, collectively referred to as the central nervous system.

The brain and spinal cord are key to overall anatomic integrity, physiologic well-being, and basic survival. The brain is the seat of vital functions, including respirations and heart rate and rhythm. It is encased within a bony cranial vault and attached at its base to the spinal cord, an appendage of nervous tissue that enters the skull through an opening called the foramen magnum. The spinal cord is protected by the spinal column. It ends in a tail of nervous tissue called the cauda equina, or horse's tail, ultimately ending in the filum terminale.

The brain and spinal cord are protected by membranes called the meninges. Within the protective meninges and surrounding the brain and spinal cord is a fluid cushion known as cerebral spinal fluid. This fluid flows from and circulates through a series of receptacles collectively referred to as the ventricular system.

Oxygen and nutrients are supplied to the brain through a series of blood vessels that enter the brain through paired carotid arteries that branch off to various parts of the nervous tissue. By-products of metabolism are removed via a series of vessels that arise within the brain and exit through paired jugular veins. Similarly, oxygen and nutrients flow to the spinal cord through a series of arteries, and metabolic wastes are removed via a series of veins. Any disruption of blood flow either to or from the central nervous system can disrupt the production, circulation, and removal of cerebral spinal fluid and create a catastrophic event in the brain or spinal cord that could result in significant disease or death.

The brain and spinal cord are further protected from harmful substances that circulate in the bloodstream by a blood-brain barrier, a series of small, tightly sealed capillaries that inhibit the movement of potentially toxic substances into the brain. Although the blood-brain barrier is inherently protective, under certain circumstances, including infection, the barrier's capillaries can become "leaky." When that happens, toxins, including microorganisms, can enter and injure the brain or spinal cord.

Compressive ischemic injury

The skull is a closed compartment. Pressure within it is generated by the mass of the brain and the volume of cerebral spinal fluid. Pressure within the brain is called intracranial pressure, which reflects both pressure being exerted from outside the brain and pressure being exerted on the spinal cord.

In adults, the skull is rigid and cannot accommodate changes in pressure from within. In children, the skull may expand, protecting the brain from compressive injury. At birth, infants' skulls have openings, or fontanels, that expand when pressure within the brain increases. Later, when the fontanels close, the skull can no longer expand.

If there is too much intracranial pressure, blood flow to the brain can be interrupted, causing ischemia, or localized decreased perfusion. If the ischemia continues unabated, the tissue--deprived of oxygen, nutrients, or both--will die. This is called necrosis.

Blood vessels leading to or arising within the brain and spinal cord can be injured and bleed. When bleeding occurs from a vein or an artery, blood will collect in the cranial vault and ultimately compress the brain, raising the intracranial pressure. Under extreme circumstances, these compressive forces coax the brain to move away from those forces. The brain may move down and through the foramen magnum, a condition called herniation, which often results in death.

Compression can also occur in the spine, affecting the spinal cord. However, the mechanism is slightly different. The spine is composed of individual bones that become progressively larger from head to tail. The smallest vertebrae are close to the skull, and the largest are at the base of the spine. This arrangement allows the larger vertebrae to withstand the pressure generated by body mass, which increases in a descending fashion toward the base of the spine.

The spinal cord is protected in a ring formed by the column of vertebrae. The individual vertebrae are separated from each other by intervertebral disks that act as cushions against the forces applied by movement of the spine. The disk material can become diseased, slip, or become dislodged, a condition called herniation. Disk material can slip from side to side (lateral herniation) or from back to front (central herniation) and, in doing so, can apply undue compressive forces on the soft spinal cord and nerve roots that emanate from the spinal cord. As with the brain, if the compressive forces are applied for too long, blood flow to the spinal cord can be compromised, leading to permanent nerve tissue injury, the manifestations of which vary depending on the site of injury.

Infection

Infection in the central nervous system can do much damage. Organisms can enter the brain either through a break, or breach, in the skull or spinal column or via the bloodstream, across the blood-brain barrier. The infection generally first involves the meningeal coverings, creating infectious meningitis. Organisms can also gain access through drains placed directly into the cerebral spinal fluid ventricular system for therapeutic reasons, resulting in ventriculitis. Microorganisms can also penetrate the brain substance, resulting in cerebritis or a brain abscess. Cerebritis usually results from direct inoculation or viral infection.

Early diagnosis and treatment of bacterial meningitis can prevent lasting injury and significant neurologic impairment. In most instances, it can be effectively treated in its early stages with a course of intravenous antibiotics.

The exception to the potential medical malpractice case based on an infection is when the infection is caused by a virus. Under these circumstances, the focus of early diagnosis shifts from active intervention to support. Unfortunately, to date there is ongoing debate as to the effects of antiviral drugs. Attorneys who pursue medical malpractice cases involving viral infection should direct their efforts toward proving the need for early hospitalization and support, which could have diminished, if not totally eradicated, the results of the viral process.

No drugs have been developed to provide a sure cure for a viral central nervous system infection. To try to prove at trial that early treatment of a viral infection would have eradicated it and prevented lasting injury may prove futile.

Taking the case

Once the attorney has determined that a neurological case may prove meritorious, the next step is to obtain the appropriate medical records that relate to the injury and also those from before and after the injury. Lack of proof of negligent acts that took place before and after the injury may help show that the client's injuries occurred at the hands of the defendants. The attorney must be certain of the negligence and never lose sight of the proximate causation and damages.

When reviewing medical records, the attorney should keep in mind the so-called window of opportunity and point of irreversible injury. Both help to define or clarify negligence.

The window of opportunity refers to the time during which treatment has the best chance of preventing lasting injury. The point of irreversible injury refers to the point at which a patient can make a complete recovery versus the point at which there may be lasting injury. That should not be interpreted to mean that treatment beyond the window of opportunity or past the point of irreversible injury will no longer be beneficial. The outcome is just no longer certain.

No one can predict with 100 percent accuracy the exact length of the window of opportunity or the point of irreversible injury. The times vary from patient to patient and depend on the magnitude and duration of the injurious forces balanced against the reserves of the patient, such as age and immune system integrity. In most cases, earlier diagnosis and treatment could only have been beneficial and delay in treatment could only have been harmful.

After the attorney has gathered and reviewed the client's medical records, the case should be submitted for formal review by a qualified medical expert. Generally, a qualified medical expert is someone who has the requisite education, skill, knowledge, and expertise to evaluate the case and form an opinion based on knowledge of standards of medical care, the mechanism of the injury, and the likelihood that such an injury could have been avoided. No expert can be 100 percent certain, but he or she should be able to honestly assess the care and be able to render an opinion with a reasonable degree of medical certainty.

Once the expert has found strong evidence of medical malpractice, the attorney should make sure that the case pleadings are consistent with the information in the medical records and accurately reflect the anticipated testimony of the medical consultant. Discovery should be directed at clarifying issues raised by the expert to uncover not only potential defense arguments but also weak points and conflicts in defendants' testimony. During depositions, it is always a good idea to question defendants about their opinions of the cause of the client's injury.

At trial, simplicity should be the rule. Although jurors want to understand the facts of the case, they become bored with complex explanations. They need to learn the medicine in an organized manner.

By calling the defendant as the first witness and asking carefully crafted questions, the attorney can prove many of the elements of the plaintiff's case and teach the jury much of the medicine. The attorney should ask questions that, regardless of the defendant's response, make it clear that the defendant departed from the standard of care and that the departure was the proximate cause of the plaintiff's injuries.

The defendant's testimony should be followed with testimony from the plaintiff's experts. They should establish a prima facie case and provide a basis for their opinions, giving the jury another opportunity to understand the medicine. The client's testimony can be used to establish damages.

The number of experts plaintiff's counsel presents is never as important to a jury as their quality, sincerity, demeanor, and ability to relate to the jurors. Experts may be extraordinarily knowledgeable or erudite, but if they cannot be understood by the average juror, their testimony will not be convincing. The attorney should tell them to clearly, concisely, and simply explain the mechanism of the injury, the standards of care, and the lasting effects of the negligence on the plaintiff.

One expert usually is not sufficient in a neurological injury case because the defense can easily claim that the expert's opinion is untruthful and flawed, and the plaintiff will be left with no corroborating testimony. This tactic can place the plaintiff's case at great risk. On the other hand, by using a number of experts, plaintiff's counsel runs the risk of having them contradict each other.

To avoid this problem, experts should be prepared carefully before trial and should not be pushed to testify beyond the scope of their expertise. This most assuredly results in failure.

The following cases illustrate some points that have been addressed.

Case Number 1: Compressive ischemic injury to the brain

Betty Ross was a 45-year-old housewife who died about eight hours after being released from a hospital emergency room. She had battled alcoholism for five years.

On January 5, 1994, she spent the evening at a local bar. As she was leaving, she stumbled, striking her head on a door frame. Friends took her to the local hospital for examination.

In the emergency room, Mrs. Ross was lethargic, drowsy, and somewhat combative. An ER physician examined her and ordered a plain X-ray of her skull and a reading of her blood-alcohol level. The X-rays were interpreted as negative for any pathology, and her blood-alcohol level was high.

Mrs. Ross was diagnosed as being intoxicated and moved to a stretcher to "sleep it off." Emergency room personnel called a neurologist, who said there was no need for him to see Mrs. Ross unless her X-rays were interpreted as positive for any pathology. An emergency room nurse called Mrs. Ross's husband, who told the nurse that his wife frequently went on drinking binges and that he would come to get her in the morning.

After about five hours, the emergency room nurse was able to wake Mrs. Ross, but her level of consciousness and behavior had not improved. At 7 a.m., the ER physician concluded that she was drunk and could go home with her husband.

When her husband arrived, she was barely responsive. Mr. Ross told the nurses that this behavior was odd, as she was generally better after a long period of sleep. They assured him that she merely needed to "sleep it off" some more. The nurses then carried her to her husband's car.

At home, Mr. Ross opened the car door, and Mrs. Ross fell out. He carried her into the house and put her on the couch to sleep. He checked on her frequently, but he found no improvement. At about 3 p.m., he noticed she was not breathing. He called an ambulance, and she was taken back to the hospital, where she was pronounced dead on arrival.

An autopsy revealed a massive subdural hematoma with brain compression and herniation. In addition, there was a seemingly insignificant skull fracture.

At trial, the defense argued that the minimal standard of care had been met--that at the time of Mrs. Ross's arrival at the emergency room, there were no findings consistent with a significant head injury, and the most likely diagnosis was alcohol intoxication. The defense said that Mr. Ross was culpable since he should have taken his wife back to the emergency room within a reasonable length of time.

Mr. Ross's attorneys called two experts. The first, an emergency room physician, testified that had Mrs. Ross merely been demonstrating the effects of intoxication, her condition would have improved throughout the night as her body metabolized the alcohol. He also said that the applicable standard of care required the doctor to conduct hourly neurological checks, which would have shown a pattern consistent with deterioration of mental status and level of consciousness.

The expert said a neurosurgeon, not a neurologist, should have been called within the first few hours to examine Mrs. Ross and determine whether her condition was due to a significant head injury or alcohol intoxication or both. A neurosurgeon would have probably determined that her unimproved level of consciousness and lack of responsiveness were due to both conditions. The expert also said that Mr. Ross could not have been expected to recognize a serious neurological emergency, particularly when it had been missed by the defendants.

The second expert, a neurosurgeon, testified that the head injury caused edema, or swelling of the brain, and together with the collection of blood in the subdural space produced a deterioration in Mrs. Ross's level of consciousness and neurological status. The failure of the emergency room physician and the neurologist to properly examine her to find the cause of her lethargy, combativeness, and unconscious state allowed blood to accumulate, which ultimately caused brain compression and herniation, the proximate cause of her death.

The expert faulted the emergency room personnel for not recognizing that a simple case of alcohol intoxication would have resulted in an improvement, not a deterioration, of mental status and consciousness. He faulted the neurologist for failing to see Mrs. Ross and for failing to suggest that a CT scan be ordered for detection of intracranial hemorrhage.

The jurors deliberated for four hours, during which they asked that testimony related to Mrs. Ross's condition at admission and discharge be read back. They rendered a verdict on behalf of the plaintiff.

Case Number 2: Ischemic compression

Timmy Trent is blind and deaf following admission to the hospital as a toddler for treatment of hydrocephalus, increased intracranial pressure due to a dysfunction within the cerebral spinal fluid pathways. A shunt was placed in the ventricular system of his brain. But the procedure was done too late to reverse the effects of prolonged, increased intracranial pressure.

From the day Timmy was born, his health was monitored by Dr. Welch, an old-time pediatrician. Ms. Trent faithfully brought Timmy for his well-baby checkups. He seemed to be growing and developing normally except that when Timmy was about eight months old, Ms. Trent thought his head was unusually large. She told Dr. Welch that it was difficult to get a baseball cap to fit him and that she could barely pull a polo shirt over his head.

Dr. Welch laughed and told Ms. Trent that a baby's body grows at different rates. He reassured her that all was well.

By the time Timmy was a year old, he was vomiting frequently, and Ms. Trent thought he had become somewhat irritable. At 13 months, he did not seem as responsive to toys as he had in the past. Ms.Trent told Dr. Welch that bright-colored toys did not elicit a response and that Timmy did not seem to notice objects around him. Once again, Dr. Welch assured her that her son's development was as expected and consistent with children his age.

One morning, Ms. Trent noticed that Timmy's eyes looked strange. The whites were visible above his irises. She called Dr. Welch's office, but he was out sick. She was told to take Timmy to Dr. Burnes, the covering pediatrician. Dr. Burnes took one look at Timmy and was visibly concerned. He measured his head with a tape measure, something Ms. Trent had seen Dr. Welch do only once or twice.

Dr. Burnes told Ms. Trent that Timmy appeared to have hydrocephalus with a bulging fontanel. He said the peculiar appearance of his eyes, a "setting sun" sign, was consistent with hydrocephalus, as was the vomiting.

Timmy went from Dr. Burnes's office to the emergency room, where a pediatric neurosurgeon and a neurologist evaluated him. They diagnosed him with hydrocephalus, and within hours he was in the operating room, where doctors inserted a ventricular-peritoneal shunt. The shunt would remove excess cerebral spinal fluid from the brain and divert it into the peritoneal cavity.

After the surgery, Timmy seemed more alert and active. His head circumference started to return to a size more typical for a child his age. However, the neurosurgeon said that Timmy could not see and that he might not regain his vision. The neurosurgeon said the hydrocephalus had been present for so long that it exerted pressure on the optic nerves to the point of an irreversible ischemic injury.

At trial, the defense argued that there was no good reason to conclude that Timmy's vision loss was part of the constellation of defects that led to hydrocephalus. The defense pediatric neurologist testified that the same problem that had caused the blindness caused the hydrocephalus. He claimed that by the time the hydrocephalus could have been diagnosed, the irreversible injury would have already occurred.

The defense also called a pediatrician who testified that there is no need to measure a child's head circumference during the first year. The doctor said that up to Timmy's first birthday, the size of his head had been normal. The doctor based his opinion not on objective measurements but on Dr. Welch's 50 years of experience as a pediatrician.

The Trents' case was based on negligent pediatric care. A pediatrician and a pediatric neurologist both testified to support that claim. The pediatrician said that the signs and symptoms of hydrocephalus were present at least since Timmy was eight months old.

The pediatrician testified that Dr. Welch failed to take regular measurements of Timmy's head, as was required by the prevailing standard of care. He also said that even without those measurements, Dr. Welch had the information he needed to diagnose hydrocephalus.

Ms. Trent had made repeated references to the abnormal size of Timmy's head. The expert showed the jury photographs of Timmy taken at his first birthday party, which showed an abnormal-sized head and the classic setting-sun sign.

The pediatric neurologist testified that the longer hydrocephalus remains untreated, the more likely the risk of permanent optic nerve injury. The expert said that the only time blindness occurs in children with hydrocephalus is when treatment is delayed. He testified that the injury was a direct result of Dr. Welch's failure to timely diagnose and refer Timmy for treatment that would have prevented lasting injury.

The jurors deliberated for about six hours, during which they requested the photographs of Timmy's first birthday party. The jury rendered a verdict in favor of the Trents.

Case Number 3: Compressive ischemic injury to the spinal cord

In the summer of 1992, Judy Clark, age 18, was a counselor at Camp Big Horn, where she taught and supervised students as they shot rifles at clay targets. Ms. Clark was helping a camper when the gun accidently discharged. The force of the shot caused Ms. Clark to twist and bend backward. Within hours of the incident, her back hurt.

The camp doctor prescribed muscle relaxants and told Ms. Clark she needed to be re-evaluated the next day. By the following morning, she could not get out of bed. The camp doctor was summoned, and he prescribed rest and a heating pad. Another day passed, and Ms. Clark still did not feel right. She was also having trouble urinating. Ms.Clark called her parents, who had her transported by ambulance to a hospital in their home city.

At the emergency room, Ms. Clark complained of numbness in her inner thighs and a peculiar feeling that she had to urinate. Ms. Clark was admitted on a Saturday morning, but it was not until the following Monday morning that doctors ordered an MRI of her spine, after which they diagnosed nerve-root compression.

A neurosurgeon examined Ms. Clark and reviewed the films. He sent her to the operating room immediately, where the affected disk was removed. After surgery, the neurosurgeon reported that the pressure on the nerve roots had been relieved.

Ms. Clark soon recovered from the anesthesia but reported no change in the way she felt. Over the next several months, she still had numbness in her thighs and rectal and vaginal areas and an inability to urinate or have a bowel movement. She had to learn how to catheterize her bladder and was placed on a regimen of laxatives and stool softeners.

At trial, the defense called a neurosurgeon, who testified that by the time Ms. Clark had arrived at the hospital the window of opportunity had passed and the timing of the surgery was no longer an issue. The defense argued that the camp doctor was responsible for Ms. Clark's injuries.

Ms. Clark's attorneys called a neurosurgeon, who testified that the window of opportunity extended past the transport to the hospital, as evidenced by Ms. Clark's progressive loss of neurological function, including bladder and bowel function, up to the hours before surgery. The expert said her condition was an emergency when her bladder and bowel function were compromised. He said the camp doctor's failure to recognize an emergency and the hospital's failure to have a neurosurgical consultant perform emergency decompressive surgery were proximate causes of her loss of bladder and bowel control.

The expert also testified that there was no medical reason for the hospital not to have obtained the diagnostic studies or call a neurosurgeon immediately to perform the surgery. By delaying, the expert said, the hospital's window of opportunity to prevent permanent injury was lost.

The neurosurgeon also said the bladder and bowel injury was foreseeable and that the outcome could have been avoided with earlier diagnosis and treatment.

The jurors deliberated about 12 hours. They concluded that both the camp doctor and the hospital were negligent and apportioned liability between them.

Practical tips

These example cases are by no means all-inclusive but are intended to illustrate the issues that are central to neurological and neurosurgical cases. The following tips may help in selecting meritorious cases and handling them successfully.

* Be clear as to the nature of the injury.

* Understand the pathological mechanism that caused the injury.

* Be certain that the injury was foreseeable and avoidable.

* Be convinced that any other cause for the injury can be logically ruled out.

* Consult experts who will render honest, but not necessarily favorable, opinions.

Litigating these cases can be satisfying. Clients can be compensated for others' negligence, and attorneys can feel gratified for having taken a complex medical scenario and clearly explaining it to jurors.

Medical negligence documents from the ATLA Exchange

The documents listed below and many others on topics pertaining to medical negligence litigation are available from the ATLA Exchange. For more information, visit the Exchange Web site at http://exchange.atla.org, or contact the Exchange by phone at [phone] or by fax at [phone].

Emergency rooms

American National Bank v. Lutheran General Hospital. Deposition of the defendant's emergency medicine expert in a case alleging failure to diagnose aortic dissection. (No. PN-466.)

Arline v. St. Elizabeth Hospital. Deposition of a medical expert and the parties' primary interrogatories, objections, and answers in a case alleging failure to administer a tetanus shot. (No. PN-376.)

DeMario v. St. Francis Medical Center. The plaintiff's complaint and motion for application of state law and the final pretrial order in a case in which the plaintiff alleged an emergency room physician had failed to diagnose a bowel obstruction. (No. PN-3210.)

Kaberline v. Martha Washington Hospital. The plaintiff's complaint alleging an internist negligently failed to diagnose his cervical fracture and to remove his cervical collar before his spine was stabilized. (No. PN-215.)

Manship v. Coastal Emergency Services. The plaintiff's memoranda in opposition to the defendants' summary judgment motions in a case alleging failure to properly treat an infection. (No. PN-480.)

Emergency Medical Treatment and Active Labor Act (EMTALA)

Hewett v. Inland Hospital. The plaintiff's response to the defendants' motion to stay and incorporated memorandum of law and the defendants' supplemental memorandum regarding jurisdiction and the plaintiff's objections in a case holding state notice and prelitigation screening requirements for medical negligence claims are inapplicable to an EMTALA claim. (No. PN-617.)

Lopez-Soto v. Hawayek. The plaintiffs' appellate briefs in a case holding that EMTALA's screening and stabilization requirements should be read separately. (No. PN-622.)

Paz de Castellanos v. Sociedad Espanola de Auxilio Mutuo y Beneficencia de Puerto Rico. The plaintiff's complaint and revised joint pretrial memorandum in a case alleging a hospital and several doctors had failed to properly examine, stabilize, or treat a pregnant woman in labor before transferring her to a different facility. (No. PN-624.)

Roberts v. Galen of Virginia, Inc. The parties' U.S. Supreme Court briefs and an amicus curiae brief supporting the defendant in a case holding it is unnecessary for a plaintiff to show a hospital's improper motive to prove liability under EMTALA. (No. PN-603.)

Steele v. Anson County Hospital. The plaintiffs' memorandum supporting partial summary judgment in a case alleging improper patient "dumping" under EMTALA. (No. PN410.)

Employee Retirement Income Security Act (ERISA)

Dukes v. U.S. Healthcare, Inc. Appellate briefs of the plaintiffs and amicus curiae in a case holding federal courts lacked ERISA civil enforcement preemption jurisdiction over negligence claims against a health maintenance organization. (No. PN-477.)

Frappier v. Wishnov. The parties' appellate briefs in a case holding ERISA does not preempt a vicarious liability claim against an HMO. (No. PN-525.)

Herrera v. Lovelace Health System, Inc. The plaintiff's motion to remand, memorandum in support of the motion, the defendants' response, and the plaintiff's reply in a case holding that a man's claims alleging negligent vasectomy against a doctor and health main tenance organization are not completely preempted by ERISA. (No. PN-605.)

Shannon v. McNulty. The plaintiffs' appellate brief and the Pennsylvania Trial Lawyers Association's amicus curiae brief in a case holding an HMO may be liable under vicarious and corporate liability theories. (No. PN-592.)

Laparoscopy 

Abreu v. Nunez. The plaintiffs' depositions of experts and the defendant in a case alleging a gynecologist negligently performed a laparoscopy, resulting in a thermal burn of a woman's left ureter. (No. PN-411.)

Cataldi v. Wilson. Deposition of the plaintiffs' general surgery expert in a case alleging negligent laparoscopic cholecystectomy. (No. PN-512.)

Obstetrics

Brown v. HCA Highland Hospital Services. The plaintiffs' supplemental petition on breach of contract, damages, attorney fees, medical negligence, and loss of consortium in a case alleging hospital liability for failure to monitor fetal distress. (No. PN-462.)

Hull v. Cohen. The defendant's deposition in a case alleging use of excessive force in a delivery. (No. PN-379.)

Marlin v. Murdoch. The plaintiffs' trial brief in a case alleging negligent delivery of an infant when shoulder dystocia was encountered. (No. PN-414.)

Pisco v. Maternity Infant Care Family Planning Project. The plaintiff's obstetrical expert's trial testimony in a case alleging the defendant had negligently failed to rule out placenta previa or timely administer tocolytic drugs. (No. PN-458.)

Wingo v. Rockford Memorial Hospital. Depositions of the plaintiffs' obstetrics expert and the defendants' nursing expert in a case in which the plaintiffs alleged improper discharge of a pregnant woman with ruptured membranes. (No. PN-538.)

Brain injuries

Neurological and neurosurgical cases involve intracranial processes that adversely affect the brain or spinal cord.

Harvey F. Wachsman, a doctor and an attorney, practices law in Great Neck, New York. Carole L. Gutterman, a registered nurse, consults with medical malpractice law firms.