Harris v. Advocate Health and Hosp. Corp. — Nov. 2015 (Summary)

MEDICAL MALPRACTICE – DISCLOSURES TO PATIENTS

Harris v. Advocate Health and Hosp. Corp.
No. 1-14-1773 (Ill. App. Ct. Nov. 19, 2015)

The Appellate Court of Illinois granted summary judgment/dismissal for a hospital that was sued by the estate of a patient who died after being struck by an automobile and then, upon admission to the hospital, accidentally overdosed by a nurse who administered 10 mg. of Versed, a sedative, without a doctor’s order.

At the time of the patient’s hospitalization and death, the patient’s daughter was informed the patient died due to injuries sustained from the automobile accident. In fact, it was not until a couple of days after the patient died that the nurse manager of the ED told the ED’s medical director about the overdose. Following that revelation – and the subsequent internal investigation and remediation – it was determined not to inform the patient’s family of the overdose or the fact that it could have contributed to the patient’s death. A new disclosure policy was drafted, however, as a result of the Risk Management Committee’s consideration of this patient’s case – and that policy was implemented at a later date.

When the medical director of the emergency department inquired as to whether the deceased patient’s family had been notified, he was informed that the CEO would not make any disclosures. The medical director of the ED was fired a few months later and sued, claiming that his termination was in retaliation for his advocating that the patient be informed of the Versed incident. During the course of his lawsuit, which was ultimately settled for $1 million, an investigator working on behalf of the medical director’s lawyer contacted the patient’s daughter to obtain authorization to access the patient’s medical records. As a result of that contact, the patient’s daughter was first alerted to the Versed overdose – resulting in this lawsuit against the hospital.

During the course of the litigation, the hospital claimed that the statute of limitations had expired on the medical malpractice claim. The daughter claimed that the statute of limitations should be tolled due to fraudulent concealment by the hospital, which prevented the daughter from discovering the malpractice.

In rejecting the daughter’s claim of fraudulent concealment, the court noted that information concerning the Versed doses was present in the medical record and the hospital made no misrepresentations to the patient’s daughter that prevented her from learning of her claim. Nothing in the record suggested that the physician who spoke with the patient’s daughter at the time of the patient’s hospitalization and death knew of the Versed incident or intentionally concealed it. Furthermore, the court of appeals noted the daughter was unable to show that any of the hospital administrators who knew of the Versed incident also knew about the initial conversation that took place between the daughter and emergency room physician. The court of appeals further held that, regardless of evidence of fraudulent concealment, the patient’s daughter’s claim would still fail because she failed to exercise ordinary diligence in investigating her claim. The patient’s daughter and an attorney had received the medical records in 2000, at the time she sued the automobile driver, and they could have taken steps at that time to learn the cause of the patient’s death.