EMAIL TO A FRIEND COMMENT

 

Professional Judgment Jury Instruction Applies to Physicians and Nurses


A woman shoveled snow over a number of days, then developed pain in her neck and a headache. The woman presented to a hospital’s emergency room complaining of headache, nausea, dizziness, and neck pain. A nurse was the first healthcare provider to see her in the ER. The woman’s vital signs included high blood pressure and low blood oxygen saturation. A specialist in emergency medicine evaluated the woman, diagnosed a cervical sprain, and ordered her discharged. The doctor did not order an MRI, a CAT scan, or any other tests. Another nurse processed the discharge, although the woman’s blood pressure remained elevated.

 

Ten days later the woman was found in her home unresponsive. She had suffered a hemorrhagic stroke resulting from a ruptured aneurysm in her brain. The stroke caused serious injuries.

 

The woman sued the hospital and the specialist in emergency medicine. The complaint alleged that her treatment in the ER was below the standard of care in three ways. First, the nurse who initially evaluated her did not properly triage her. Second, the specialist in emergency medicine failed to recognize that her symptoms were consistent with an impending cerebral vascular incident (CVA) and did not order tests that would have detected a CVA or aneurysm. Third, the discharge nurse did not follow the hospital’s policy in discharging the woman despite unstable vital signs. The complaint alleged that the discharge nurse should have acted as the woman’s advocate by challenging the discharge order.

 

Before trial, the doctor stipulated that he would not ask his expert neurosurgeon about whether a CT or MRI was indicated or required to be done when the woman presented to the ER. At trial, during the woman’s case in chief, her neurosurgeon expert testified that the woman’s presentation in the emergency department indicated a brain bleed, also known as a sentinel bleed. He opined that one would do a CAT scan to locate the bleed. The woman’s expert clarified that he was not commenting on “whether an emergency room doctor was required to get a CAT scan or not by the standard of care.”

 

During the doctor’s defense, he called his expert neurosurgeon to the stand. The woman objected to expert testimony from the doctor’s neurosurgeon. The woman argued that the testimony violated a stipulation or improperly opined on the standard of care for a specialist in emergency medicine. The El Paso County District Court overruled the woman’s objection and allowed the neurosurgeon to testify. The doctor’s neurosurgeon reviewed the woman's presentation at the emergency department and described possible signs of a brain bleed. The doctor asked the neurosurgeon about the likelihood of whether the woman’s presentation indicated that she might be having a sentinel bleed or a warning bleed from an aneurism. The woman objected that this question was an attempt to elicit a standard of care opinion, which the doctor had stipulated he would not do. The doctor clarified that he only stipulated to not asking the neurosurgeon about whether a CT or MRI was indicated or required to be done when the woman presented to the ER. The trial court overruled the woman’s objection and allowed the neurosurgeon to testify. The neurosurgeon testified that her presentation did not indicate a sentinel bleed.

 

At the close of testimony, the trial court instructed the jury that, “A physician or nurse does not guarantee or promise a successful outcome by simply treating or agreeing to treat a patient. An unsuccessful outcome does not, by itself, mean that a physician or nurse was negligent. An exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician or nurse was negligent.” The jury returned a verdict in favor of the health center and doctor.

 

The Fourth Division of the Colorado Court of Appeals affirmed. The court held that the trial court acted within its discretion by instructing the jury that an exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician or nurse was negligent; and did not err in overruling the woman's objections to expert testimony from a neurosurgeon as violating a stipulation or improperly opining on the standard of care for a specialist in emergency medicine.

 

The trial court acted within its discretion by instructing the jury that an exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician or nurse was negligent. The court held that a trial court may depart from the Colorado Jury Instruction (CJI) where the factual situation or changes in the law warrant a departure from the CJI instructions. The notes on use for the pattern jury instruction at issue say that the instruction is generally applicable to members of other healing arts, although the reference to other healing arts does not alone show that the instruction was proper. The factual record was not conclusive with regard to whether the nurses were exercising a nursing judgment. The woman failed to identify any expert testimony that the nursing activities at issue did not require some exercise of judgment. However, the hospital's nursing standard-of-care expert witness did not opine that either nurse was exercising a nursing judgment. In the absence of definitive Colorado authority or a conclusive factual record, the trial court did not abuse its broad discretion for four reasons. First, the question was unresolved in Colorado cases. Second, language in the CJI supported extending the instruction to health care professionals other than physicians. Third, one Colorado case and several statutes classified nurses as medical professionals. Fourth, the hospital's policy vesting nurses with the prerogative of challenging a physician's order referred to “good clinical judgment” in carrying out authorized physician orders.

 

The trial court did not err in overruling the woman's objections to expert testimony from a neurosurgeon as violating a stipulation or improperly opining on the standard of care for a specialist in emergency medicine. The doctor’s stipulations with regard to his neurosurgeon’s expert testimony did not encompass the testimony to which the woman objected. The doctor did not ask his neurosurgeon nor did the neurosurgeon opine about whether a CT or MRI was indicated or required to be done when the woman presented to the ER, as stipulated. In light of the totality of his testimony, the neurosurgeon properly analyzed the plaintiff's presentation and history as they related to his specialty, and offered opinions within that specialty concerning the likelihood that she was experiencing a sentinel bleed when she appeared in the emergency department.

 

The Fourth Division of the Colorado Court of Appeals affirmed the trial court’s instruction to the jury that, “An exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician or nurse was negligent,” and overruling the woman's objections to expert testimony from a neurosurgeon as violating a stipulation or improperly opining on the standard of care for a specialist in emergency medicine.

 

See: Gasteazoro by and through Eder v. Catholic Health Initiatives Colorado, 2014 WL 5073152, 2014 COA 134 (Colo.App., October 9, 2014) (not designated for publication).

 

See also Medical Law Perspectives, October 2013 Report: Brain Aneurysm and Subarachnoid Hemorrhage: Failure to Diagnose, Delayed Diagnosis, Misdiagnosis

 

See also Medical Law Perspectives, June 2012 Report: Too Much, Too Little, Too Late: Injuries from Delays and Failures to Perform CT Scans or Overexposure to Radiation

 

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

 

 

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