Does a hospital owe compensation to a woman after she removed life support from a man the hospital misidentified as her brother? The woman, who says she was devastated when told the dead man’s true identity, has filed a medical malpractice lawsuit demanding unspecified damages for her “severe emotional harm and injuries.”
The lawsuit, filed in Bronx Supreme Court in January, says St. Barnabas Hospital was negligent last year when employees told the woman that her 40-year-old brother was unconscious from an apparent drug overdose and had severe brain damage. Eventually, the hospital counseled her to remove life support. But after she did so, an autopsy identified the dead man as another 40-year-old man, who had been behind bars at NYC’s Rikers Island before his death.
Is this case of patient mistaken identify medical malpractice? Medically, the patient in the hospital bed was indeed brain-dead, and withdrawing life support was the appropriate medical decision. But what are the laws regarding discontinuing life support as they apply to a medical professionals’ duty of care to family members making this difficult decision? The woman’s medical negligence lawsuit says the hospital breached its duty owed to her when health care providers negligently misinformed her that her brother had died.
For that matter, what might a medical care provider owe to family members (if they exist) of the person misidentified? We’ve seen nothing about family members of the patient who, due to the hospital’s error, were not with him as his life ended. What, if anything, are they owed?
What is a Medical Malpractice Lawsuit?
Medical malpractice occurs when a hospital, doctor or other health care professional, through a negligent act or omission, causes a patient to be injured. To be successful, a medical negligence lawsuit must demonstrate that the defendant’s act or failure to act deviated from the standard of care that a reasonably prudent health care professional would have provided under similar circumstances. The plaintiff must also demonstrate that he or she suffered an injury that would not have occurred in the absence of the defendant’s negligence.
Medical errors that are common in medical malpractice cases include:
- Failure to diagnose or misdiagnosis
- Improper medication or dosage
- Misreading or ignoring laboratory results
- Surgical errors or wrong site surgery
- Hospital-acquired infections.
In this malpractice lawsuit, it is not the patient who claims to have been injured. It isn’t even a family member, though the woman served as a surrogate for the patient’s family.
Medical professionals and organizations do recognize a duty of care to the families of patients. For example, the American Journal of Critical Care states that, “Preparation of families for withdrawal of life support should be part of appropriate and effective end-of-life care.”
However, the focus of care provided to patients’ family members is on proper communication. The medical journal Behavioral Sciences dedicated an entire special issue to Family Communication at the End of Life. Its introductory essay says:
Family members are the ones that deal with the outcomes following the death of their loved one, therefore they have the most investment in the communication that occurs at the end of life. In addition, family members are essential at the end of life because of the role they play as decision-makers and their responsibility in fulfilling the terminally ill’s final wishes. Lastly, family members are the primary communicators with healthcare and palliative care professionals regarding the care and health decisions surrounding the end of life journey of their dying loved ones.
The American Medical Association’s code of ethics for end-of-life decisions indicates that the New York doctors were right to discontinue care. “When a permanently unconscious patient was never competent or had not left any evidence of previous preferences or values, since there is no objective way to ascertain the best interests of the patient, the surrogate’s decision should not be challenged as long as the decision is based on the decision maker’s true concern for what would be best for the patient,” it says.
In Florida, state law referring to recognition of brain death says doctors can remove life support when brain death has been determined, and the next of kin should be notified “as soon as practicable” that brain death has occurred. Further, the law protects medical professionals and facilities from lawsuits if they declare brain death according to procedures outlined in the statute, regardless of whether the family was notified.
Even though patient misidentification is “increasing at alarming rates” and “most if not all” patient identification errors are preventable, little has been written about end-of-life decisions in cases of patient misidentification.
How Hospitals Can Avoid Misidentification of Patients
The ECRI Institute said in 2016 that over a period of about 2.5 years it found more than 7,000 patient misidentification events in its database, many with serious consequences. Though two patient misidentifications led to patient deaths, almost all events that could have caused serious harm to the patient were caught before anything terrible took place, according to Healthcare Business & Technology.
A few suggestions for avoiding patient misidentification in the ECRI Report are:
- Use two patient identifiers. Check at the beginning of each encounter for more than one of these: patient’s name, date of birth, unique hospital ID number, Social Security number or photo.
- Ask the patient open-ended questions instead of leading questions. Instead of asking “Are you Mrs. Jones?” ask “Can you tell me your name?” Patients who are disoriented or in pain may agree to suggestions just to end the conversation.
- Have protocols in place for patients in the same unit or department who have similar names. Set up plans to use secondary identifiers.
- Note any patient-specific identifiers during handoff conversations. Have staff members confirm the identity of each patient under their care upon the start of their shift.
How a Medical Malpractice Attorney Can Help
No one should be worse off after receiving medical care unless there is a sound medical reason for their decline. At Chiumento Dwyer Hertel Grant, our compassionate Florida medical malpractice attorneys can review the care you or your loved one received if you believe it has caused harm and discuss whether you have a valid malpractice claim.
We handle medical negligence claims on a contingency fee basis, which means we do not charge you legal fees upfront. You won’t pay legal fees unless and until we recover compensation for you. Contact us today about a free review of your case.