“I’m with the public defender’s office. Can you help?”

“Was the care of my client’s victim ‘grossly negligent’”

Facts: A 36 yo male on Dilantin for seizures is punched on the L side of his head in a bar fight. The victim falls to the ground, striking his head and sustains a concussion. On arrival in the ED, he is disoriented with a GCS of 14. A CT scan shows mild cerebral edema and 2 frontal lobe contusions <1 cm each. He is admitted for observation. Six hours later he has a seizure. His Dilantin level is noted to be low and is restored with IV dosing. He has a second seizure 18 hours later, becomes hypotensive, apneic and unresponsive to painful stimuli. He is intubated and a neurology consult is obtained. A second CT scan shows worse cerebral edema with suspected herniation. The 2 small contusions have doubled in size and 2 new smaller ones are present. The patient/victim remains unresponsive; serial EEG’s show no brainwave activity and he is removed from life support. His assailant is charged with manslaughter. The assailant’s Public Defender asks a physician expert if failure to treat his cerebral edema following the first CT scan was “grossly negligent.” If proper medical care would have kept the victim alive, the assailant could not be charged with his death.
Definition: "Gross negligence" describes care that falls below the level of care that even a careless person would be expected to follow. "Medical malpractice" is a form of "simple negligence," i.e., care that falls below generally acceptable standards. Some states have attempted to raise the bar for medical malpractice to gross negligence.
Plaintiff (Assailant): My victim’s care in the hospital was grossly negligent. He received no mannitol, hypertonic saline or hyperventilation when his cerebral edema was first noted, and no ICP monitor was placed. Had he been treated appropriately, he would still be alive and I would not be facing a charge of manslaughter.
Defense (Prosecutor): Your victim’s care was appropriate. He had a prior hx of seizures. The initial brain swelling was insufficient to require mannitol or other therapeutic measures. The brain swelled quickly for unknown reasons. The therapeutic approaches that you note for cerebral edema are not magic bullets. Effectiveness is inconsistent and unpredictable. By the time the second CT was done, mannitol, etc., were too late to be of use. His initial care was based on judgements made regarding treatment. It was not even simple negligence - and certainly not gross negligence.
Result: An expert reviewer evaluated the arguments from both the plaintiff and defense perspectives. Although disappointed for their client, the Public Defender accepted that the case did not rise to the level required. The assailant’s manslaughter charge stood. Eventual outcome of the case is unknown.
Takeaways:
* Hyperosmolar tx is the standard of care for significant cerebral edema, though its effectiveness for improving outcomes is debated.
* Gross negligence (see definition) is a high bar to prove in medical malpractice, although some states have tried to institute it as part of tort reform.
* Medical judgement does not have to be perfect, just reasonable, meaning that most others with similar training and experience in similar circumstances would act similarly.
* Nothing good happens in bars after 2 AM.
References:
1. Head Trauma Treatment & Management. Ainsworth CR. Medscape eMedicine. Updated January 9, 2015.
2. Hyperosmolar Therapy. Bratton SL et al. J. Neuro Trauma 24, Supplement 1, pp. S14-S20. 2007.