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Hospital’s Lack of Thoracic Surgeon on Call 24/7 Not Negligence; Immunity


A man was shot in the chest. He was transported to the hospital. A general surgeon evaluated the injuries and quickly determined that he lacked the cardiothoracic training and privileges necessary to perform the surgery that the man needed. The general surgeon sought a cardiothoracic consult and evaluation, but no cardiothoracic surgeon was available. The general surgeon began efforts to transfer the man to a hospital with a surgeon who could operate on the man. Weather conditions prevented the man’s transfer to another hospital. While transfer options were being explored, the trauma team continued efforts to stabilize the man and keep him alive. Among other procedures, they applied constant direct pressure to the wound to attempt to stop the bleeding, intubated the man, and gave him blood transfusions and IV fluids.

 

Just over two hours after the man was first evaluated by the general surgeon, a thoracic surgeon learned from his answering service that the general surgeon was requesting him in the emergency room. The thoracic surgeon had been asleep and was not on call. Half an hour later, the thoracic surgeon evaluated the man, discussed the situation with the man’s mother, and recommended proceeding to surgery as soon as possible. However, the thoracic surgeon warned the mother that it was unlikely that her son would survive.

 

The thoracic surgeon assisted by the general surgeon performed an extensive chest operation in an effort to stop the bleeding. The man survived the surgery but his condition remained highly unstable. The thoracic surgeon assessed the man’s chances of survival as virtually nil. The man passed away approximately six hours after the surgery was completed despite efforts to resuscitate him.

 

The mother sued the hospital. Her expert opined that the hospital, which was designated as a Level II trauma center under the Mississippi Trauma Care System regulations, should have been prepared to operate on the man almost immediately after his arrival. The expert also opined that the hospital should have had a thoracic surgeon on call and available at all times. The expert also opined that the general surgeon should have operated on the man even though the general surgeon concluded that he lacked the necessary training and privileges to perform the operation.

 

The hospital argued that its staffing decisions were a discretionary function entitled to immunity under the Mississippi Tort Claims Act (MTCA). Mississippi Code Annotated Section 11–46–9(1)(g), provides that a “governmental entity ... shall not be liable for any claim ... [a]rising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services[.]” The hospital’s experts opined that the hospital was appropriately staffed. The hospital also argued that a doctor does not commit malpractice by declining to provide treatment that involves a specialty in which the doctor lacks necessary training.

 

After a bench trial, the circuit court entered judgment in favor of the hospital. The trial court concluded that the mother should not be allowed to amend her complaint to allege violations of the trauma care system regulations; that even if such an amendment were permitted, the hospital complied with those regulations; and that even if a violation of the regulations had been proven, participation in the trauma care system was voluntary at the time, and the hospital’s staffing decisions were a discretionary function entitled to immunity under the MTCA. The court also found that the general surgeon’s decision not to operate on the man was not malpractice. The court summarized that the physicians involved met or exceeded the applicable standard of care in the care and treatment of the man at all times and in all respects and that nothing the general surgeon or the thoracic surgeon did or failed to do proximately caused or contributed to the man’s death.

 

The Court of Appeals of Mississippi affirmed. The court held that the trial court did not err in finding that the hospital met the standard of care and the hospital was entitled to immunity under the MTCA.

 

The trial court did not err in finding that the hospital met the standard of care. The court determined that the trauma care regulations may inform the determination of whether the hospital was negligent, but a violation would not necessarily establish a breach of the applicable standard of care. The hospital complied with the regulation by offering all of the required specialists. The general surgeon who treated the man was qualified to provide emergency thoracic surgical care to patients with thoracic injuries. The court noted that the hospital’s expert stated that 94% of thoracic emergencies require emergency surgery no more complicated than the placement of a chest tube—a type of surgery that the general surgeon performed routinely, including in this case. The general surgeon lacked the necessary training and privileges to operate on the man only because of the extensive and severe nature of the injuries to the man’s chest and blood vessels. The regulation also listed specialists that “should be” available. The trauma care system did not require that these specialists be on call and available 24/7. As the hospital’s expert’s testimony was credible and reasonable, the court affirmed the trial court’s findings and judgment that the hospital did not breach the standard of care.

 

The trial court did not err in finding that the hospital was entitled to immunity under the MTCA. The plain language of subsection (g) bars the mother’s claim that the hospital should have had a thoracic surgeon on call on a 24/7 basis. The trial court found that the hospital simply lacked the resources necessary to hire additional thoracic surgeons. As no statute required the hospital to employ any particular number of thoracic surgeons, whether to devote resources to efforts to recruit and hire such physicians was a decision committed to the hospital’s discretion. The court concurred with the trial court that the hospital’s decision not to devote resources to efforts to recruit and hire additional thoracic surgeon was immune from liability under the plain language of subsection (g).

 

The Court of Appeals of Mississippi affirmed the trial court’s entry of judgment in favor of the hospital.

 

See: Taylor v. Delta Regional Medical Center, 2016 WL 605858 (Miss.App., February 16, 2016) (not designated for publication).

 

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care 

 

 

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