Delayed Onset Medical Malpractice? Reversing the “Dead in Bed” Debacle

After years of development, the legal profession has created dozens of phrases that express ideas without excessive explanation. The terms prima facie and illegal per se come to mind. Prima facie means that at first glance, there are grounds for a case. Illegal per se implies that a particular act is inherently illegal.

Likewise, the medical profession is filled with its own shorthand. Many terms the public is already familiar with: DNR stands for do not resuscitate; an EMT is an emergency medical technician; and DOA stands for dead on arrival. But what about DIB, or “Dead in Bed?” While a narrow definition of the term speaks to cases of sudden death in Type 1 Diabetes patients correlated to a possible blood sugar crash, a broader definition has also gained prominence. In the expanded definition, Dead in Bed refers to patients who undergo surgical procedures and then die, hours later, while recovering. The question is, what legal ground do plaintiffs have in these situations? And how can the victim’s family bring about a medical malpractice wrongful death lawsuit?

For a loved one to pass away hours after what’s typically a period of decreasing danger – in a hospital bed overseen by nursing staff and a host of monitoring equipment – the loss must be particularly painful.

Troublingly, the rate of such incidents appears to be rising.

“Bedlam” for Hospitals Across the United States

A five-month investigation[1] by a Cleveland, Ohio ABC affiliate indicated that as many as 50,000 patients in the past decade have either died suddenly hours after surgery in their hospital beds on a general floor or suffered severe brain damage.

While some of these deaths remain a mystery, there are several possible causes[2]:

An as-yet undiagnosed sleep apnea – a condition where the patient experiences pauses or shallow breathing while sleeping.
Patients with a variety of pre-existing health issues (which can complicate their recovery).
The excessive use, improper prescribing, and lack of knowledge of the potency of opioid pain medications in pain management. (In addition to reducing pain, opioids also reduce respiratory function.)

Contrary to expectations that these individuals are sick or elderly, many are young people, recuperating from relatively benign conditions or elective surgery. One victim, in particular, was a 17-year-old girl recovering from strep throat, and another girl – only 11 years old – was recovering from an elective surgery[3].

To combat the problem, many medical professionals have recommended the use of continuous medical monitoring throughout a patient’s entire stay in the hospital. For instance, this would allow medical professionals to continuously track their patients’ blood oxygen levels. Likewise, patient advocacy groups, including the Patient Safety Movement and The Association for the Advancement of Medical Instrumentation, are also trying to assist.

But for patients – and their families – who have paid the ultimate price, what types of legal remedies are available?

The Right Way to File a Wrongful Death Claim

The most common route is to file a wrongful death medical malpractice claim. Often, the parents, spouse, or children of the victim file the claim. In most states, a probate court that handles wills and estates will appoint the family a representative. If an otherwise healthy person dies suddenly following an elective surgery, under the supervision of trained professionals in a hospital, you can bet that, at first glance, there are grounds for a case.

Generally, plaintiffs who file a Dead in Bed medical malpractice lawsuit may be entitled to typical wrongful death damages[4] that include:

Lost earnings (but not future lost earnings capacity)
Lost employment benefits
Medical bills
Pain and suffering

Beyond these standard damages, in some cases, wrongful death claimants may also collect funeral and burial expenses. Family members supported financially by the deceased may collect damages from the time that the benefits were expected to continue. For example, minors may receive financial compensation until the age of 18 or possibly through college if it can be proven that the deceased would have paid for their college tuition. Some states even allow compensation for what is called “loss of guidance and nurture” and possibly punitive damages if the doctor’s or hospital’s conduct is especially egregious.

As with any medical malpractice lawsuit, four essential elements must be met before a lawyer can proceed and have any expectation of winning the case. These elements include duty, breach, causation, and damages.

Duty is defined as the professional obligation a healthcare professional owes to the patient.
Breach of duty means that the healthcare professional fell below a reasonably expected standard of care.
Causation means that the violations above caused or contributed to the patient’s death (or severe post-op trauma).
Damages confirm that the patient was harmed due to the healthcare professional’s mistake.

As it relates to Dead in Bed cases, the critical question a defendant will raise is whether or not the standard of care was breached, as continuous vital sign monitoring on general hospital floors is not a standard practice in every hospital. And, while the investigative work of an ABC affiliate into the Dead in Bed cases helps spark debate, proving a Dead in Bed case can be difficult.

In the court of public opinion, if a patient dies while under a hospital’s care, hours after surgery and hours after likely being injected with powerful respiratory suppressing painkillers, it would seem to be illegal per se.

Getting from the court of public opinion to the court of professional jurisprudence requires the experienced attorneys at the Long Island law firm of Frankfort & Koltun. With our determination and medical malpractice legal expertise, it is our hope that 2017 is the year Dead in Bed cases die for good.

References:

1. “'Dead in Bed' cases result in rising malpractice lawsuits nationwide” from News 5 Cleveland on December 21, 2016: http://www.newsnet5.com/news/local-news/investigations/dead-in-bed-cases-result-in-rising-malpractice-lawsuits-nationwide

2. “University Hospitals respond to 'dead in bed' risk with state of the art monitoring” from News 5 Cleveland on December 9, 2016: http://www.newsnet5.com/news/local-news/investigations/major-northeast-ohio-hospital-system-first-in-state-preventing-patient-from-dead-in-bed-risk

3. “Dead in bed: A deadly hospital secret” from News 5 Cleveland on November 18, 2016: http://www.newsnet5.com/longform/dead-in-bed-a-deadly-hospital-secret

4. “Filing a Wrongful Death Lawsuit for Medical Malpractice” from AllLaw; retrieved on February 6, 2017: http://www.alllaw.com/articles/nolo/medical-malpractice/filing-wrongful-death-lawsuit.html