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Did nurses 'stonewall' parents of dead infant?

NO MATTER HOW MERITORIOUS A MEDICAL MALPRACTICE CLAIM, IT WILL GO NOWHERE UNLESS PLAINTIFFS HAVE QUALIFIED MEDICAL EXPERTS TO TESTIFY. This North Carolina case is a classic illustration of a case in which there were very serious questions as to whether nurses effectively administered medication and appropriately responded to the pleas of an infant's parents that the infant was seriously ill. However, because the plaintiffs failed to have a qualified expert able to testify that the negligence of the nurses, as well as other healthcare providers, were the direct and proximate cause of the infant's death, they did not prevail. Was this fair? No! Did the court act in accordance with the applicable law? Yes! Should there be some methodology pursuant to which courts can get to the verb, hearts of cases and ascertain whether there was negligence and whether that negligence was the direct and proximate cause of serious injury or death?


During the early afternoon of February 24, 2000, Brian had symptoms of nausea and diarrhea. He stopped eating and drinking. His parents took him to Randleman Medical Clinic. Dr. Stewart Kossover examined Brian and concluded that he was suffering from a viral condition. Dr. Kossover told Brian's parents that this was "nothing serious" and prescribed Amoxycillin. Brian's parents gave Brian a second dose of the drug at approximately 9:30 pm. However, Brian's condition did not improve. He vomited at least eight times during the night. Brian's father took Brian back to the Medical Center where Brian was seen at approximately 10:00 am the following morning. Dr. James Little examined Brian's ears, nose, throat, and eyes, and determined that Brian was "fine." Dr. Little left the room and instructed a nurse to administer an injection of Rocephin. Following Dr. Little's instructions, the nurse gave the injection and told the parents, in Spanish, that Brian had a "minor stomach infection." When the nurse injected Brian with Rocephin, he began to convulse involuntarily. Brian's father asked the nurse what was wrong. The nurse explained that this was "a natural reaction to the medication." After he received injection, Brian's convulsions never stopped. While Brian's father was paying the bill, Brian appeared to be turning gray. Brian's father found a nurse and begged her for help. The nurse explained that "nothing was wrong" Brian's family arrived home in approximately 15 to 20 minutes after leaving the Medical Center. Brian's father noticed that Brian's lips had turned a "blackish" color. Shortly thereafter, he received a call from a nurse from the Medical Center. He told the nurse that Brian "looked terrible, was having trouble breathing, and was dying." The nurse told Brian's father that the baby was having a "normal reaction to the medicine." In desperation, he held the phone close to Brian's mouth to prove to the nurse that Brian was having difficulty breathing. He demanded to know what injection Brian received. The nurse refused to answer the question but told him to return to the hospital with Brian immediately. Brian and his parents returned to the hospital. When they arrived, the nurse and Dr. Little were in the doorway waiting for them. Dr. Little took Brian to the examination room and noticed greenish brown fluid coming from Brian's mouth and nose. Brian was barely breathing and had no heart tone. A nurse tried to force Brian's parents out of the room. They refused to leave. Dr. Little began performing mouth-to-mouth resuscitation but was unsuccessful. Brian was pronounced dead on arrival at Randolph Memorial Hospital at 11:45 am that morning. Brian's parent's brought suit against the Medical Center and Dr. Little. At trial, Dr. Peter Curtis testified for Brian's parents. At the close of the plaintiffs' evidence, the defendants' motion for directed verdict was granted because the plaintiffs failed to elicit specific testimony from Dr. Curtis indicating that he was "familiar with the standard of care applicable to health care providers in Randolph County, North Carolina." Brian's parents' motion for a new trial was denied. They appealed.

THE COURT OF APPEALS OF NORTH CAROLINA AFFIRMED THE JUDGMENT OF THE LOWER COURT. The court held, inter alia, that after careful consideration of the records, briefs, and transcripts, the trial court acted appropriately in granting the defendants' motion for a directed verdict and in denying the plaintiffs' motion for a new trial. The court ruled that expert medical witness testimony must be elicited from one "familiar" with the standard of care in the community. Editor's Note: North Carolina is one of the few states that follow the local standard of care standard. Ramirez v. Little, 609 S.E.2d 499--NC (2005)

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 Providence, R.I. firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan 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 achievement 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, and Who's Who in America.
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Author:Tammelleo, A. David
Publication:Nursing Law's Regan Report
Geographic Code:1USA
Date:May 1, 2005
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