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The NYT is a dying brand. It has become little more than a National Enquirer with better grammar. They will say just about anything to get eyeballs to their paper and web site. The more sensational the better, truth be damned. 1600 commenters, Dwyer at the very least got a slap on the back and a hearty “attaboy” and maybe even a raise or bonus. Whitecoat’s and the others responses are correct, but wasted, it would be better to just ignore it, but it’s human nature to respond when one of your own is attacked. Dwyer’s understanding of medicine is equal to the NYT sports writer who did the hit pieces on the Duke lacrosse team legal proceedings, clueless.

I don’t think the blog posts on Whitecoat particularly cast doubt on the legal issue here of whether there was malpractice. The vast majority of the posts there complain about two fairly narrow points in Dwyer’s original Times article: first, whether a “sepsis screening test” alluded to in the article ought to have been applied; second, whether Dwyer should have named the physicians.

Even assuming that all the critics on Whitecoat are correct that Dwyer’s article mischaracterized the extent of applicability of the sepsis screening test; and further assuming Dwyer should not have named the treating physicians – there seems to be a consensus that the care was inappropriate given the symptoms and lab results.

For example, the long critical letter at WhiteCoat here: http://www.epmonthly.com/whitecoat/2012/07/jim-dwyer-new-york-times-pediatric-fever-article-debate/ , notes in point 3 that “A band count of 53% is concerning and may very well have affected Rory’s care.” (As readers following the case know, these high band values were ignored until the patient either died or was on the brink of death, I forget which).

Now, if you go through the blogs, they mostly (not surprising coming from a bunch of ER physicians) suggest that ignoring the high band values wasn’t the fault of the physicians per se but, as WhiteCoat states “That’s a system problem that needs to be addressed” (id.).

From a legal point of view, though, whether the missed band values were the physician’s fault or the hospital’s or the systems: an error was made and it is reasonable to sue here.

One very simple way to cut through all the blog comment posturing and criticism in the case is to ask: has any doctor listed the key relevant symptoms the patient displayed, and then stated “the treatment was appropriate given these symptoms”? The answer will be no – the doctors attacking Dwyer always only look at a few isolated symptoms, or a few isolated parts of Dwyer’s article – they never state that there was no critical malpractice. The overwhelming majority of medical professionals (there were a lot on the Times website among the commenters) who looked at the vitals and the bloodwork, particularly the band values, felt that Rory should not have been discharged/recalled to the hospital.

Reading between the lines, by the way, it’s fairly clear that what was really happening is that the lab was so slow getting results – taking many hours to return lab tests that should take minutes – that the doctors felt they could not wait for them. Whether this is due to EMTALA or just to mismanagement, I have no idea.

In conclusion, based on the published evidence and voluminous commentary by many medical professionals, in my lay opinion there was likely malpractice in Rory’s death. The only practical defense I see would be to argue that Rory would have died anyway, frankly, a kind of desperation ploy and not likely to succeed.

Face it: Medical Malpractice suits have everything to do with how sympathetic the patient appears to a jury. Is it a hooker who died or some “honor student” (they’re always honor students, right?) kid?

@asdfasdf VEry good summary!

NYU runs a very lax ship, and such malpractice is rampant there. Luclily, most of the time their errors and neglect do not lead to death or permanent injury so they get swept away and forgotten. NYU has a policy that goes all the way to the top of not filing mandatory “incident reports” with the Dept. of Health in order to make their statistics appear better and altering patient’s medical records and faking the cause of death on a death certificate to avoid scrutiny. The whole system is corrupt!

Whitecoat does a good job of pointing out the things that do not constitute malpractice, but obfucates the malpractice (failing to note the 53% bands value) by burying it among these non-malpractice items. By analogy, that’s like saying a construction worker did his job correctly in all respects except when he dropped the hammer and it fell striking someone on the street.

This is not an “overlawyered” case. It appears that there is real malpractice here. The case will probably settle and not make it to a jury. The “malpractice” cases that should make it to this blawg as being “overlawyered” are the ones where there is a bad outcome from a known risk of the procedure in the absence of a deviation from the standard of care.

Walter, as always, thanks for the link.

asdfasdf,

The “consensus” that you describe doesn’t exist. Mr. Dwyer’s article makes many assumptions that are incorrect or that cannot be determined based upon the information provided. You fall into the same pattern.

“As readers following the case know, these high band values were ignored until the patient either died or was on the brink of death, I forget which.”

You’re assuming several things.
First, you assume that someone actually *saw* the values. The “sepsis protocol” that Mr. Dwyer quoted created a *nursing* order (i.e. no doctor input necessary) for the labs to be done if the patient met certain criteria. That protocol wasn’t supposed to be used in children and it wasn’t supposed to supplant a physician’s clinical judgment. Mr. Dwyer made those arguments anyway and then he tried to hide the evidence that he was doing so. I believe that is irresponsible journalism.
Did the doctors see them? We don’t know. Yet you repeatedly use the phrase that people “ignored” the results, implying that someone saw the results, but just never did anything about them. Were the results really “ignored” or were they just never seen? You let hindsight bias affect the outcome of your opinion. This child died. Someone must have done something wrong.
So now we have these abnormal lab results.
Would those abnormal labs have affected Rory’s treatment? We don’t know that, either. In a well-appearing child who feels better after IV fluid during the peak of influenza season (something else Mr. Dwyer’s article failed to mention), it is conceivable that if the lab values were seen, they might not have had an effect on Rory’s disposition. “Follow up with your primary care physician tomorrow if you’re not feeling better and return if you are feeling worse” is routine advice that most emergency department patients receive on discharge. Mr. Dwyer published the sepsis protocol, but he didn’t publish Rory’s discharge instructions. Did Rory’s parents receive that advice? We don’t know that, either. But I’m not going to assume that they were given that advice and just didn’t follow it. That wouldn’t be fair to Rory’s parents.

The labs took 5 hours to be returned. That is a system problem that absolutely needs to be addressed. Turnaround time on a CBC is 15 minutes. If the band count would have affected Rory’s disposition and treatment, then I agree with you that the parents should sue. Actually, based on the inflammatory article in the Times, I’m sure that they’re going to sue anyway, but if the labs would have affected treatment, I believe that they should receive compensation for what happened to Rory.

Your sixth paragraph states the issue perfectly, but then it inverts the duties of the parties. Prospectively, how should a patient like Rory be medically managed? This is the issue. But the standard of care is fact-specific and we don’t have enough facts upon which to base a conclusion.
But then you state that it is the doctor’s duty to state that treatment was appropriate given these symptoms. To me that’s like assuming someone is guilty until they can prove their innocence. Not the way legal proceedings are supposed to work in this country, is it?
I assert that it is the journalist’s duty to provide a sufficient basis to insinuate that there was malpractice. Hiding critical details like the fact that it was flu season (and that fever, tachycardia, and vomiting are all signs of influenza), hiding the fact that he was misusing the guidelines, failing to give the doctor’s side of the story, naming doctors but no one else who was involved with Rory’s care — these are all things about which I call out Mr. Dwyer’s journalistic integrity. That’s what my posts were about.

Your statement that “the doctors felt they could not wait for” test results again assumes facts not in evidence. Do you have any evidence that the doctors even *saw* the test results?

We don’t have enough evidence to determine whether malpractice existed in this case. Roasting medical professionals in a national newspaper based on the evidence presented would be like me getting your IP address, pulling your identity, and publishing an article in your local newspaper and local bar journal with snippets of your assertions, insinuating that your opinions are full of bias and are, at best, partially informed. “You missed obvious gaps in logic and wrongfully asserted that someone was negligent without having all the facts. Clients and judges should no longer trust you.” I could make all kinds of similar assertions, but I wouldn’t do something like that – even though it wouldn’t be legally actionable – because it wouldn’t be fair to you. My point is that Jim Dwyer should have exhibited those same ethical standards and he failed to do so.

You want a statement from a doctor? Here: Based on the paucity of facts and misrepresentations in Mr. Dwyer’s article in the New York Times, beyond a reasonable degree of medical certainty there was no critical malpractice on the part of the physicians involved in Rory Staunton’s care.

Probably won’t change your mind, will it?

Dr. Kilpatient (how clever!),

I think a better analogy along your lines would be that the plumber completes his job well, the electrician does what he’s supposed to do to and the General contractor drops the ball on coordinating some design changes that both needed to do. Result: problems in the house, perhaps serious. Then, go out and give the name of the plumber as the person responsible for the General Contractor’s decisions. That’s still second guessing and hindsight, but closer than acting like the doctor actually caused the injury with your simple view. Analogies are like…well…you get.

It’s seems that the author wanted to alarm us to just one possible result (with that wonderful hindsight) without telling us any of the other 100+ maladies that could be present. The child showed improvement and was sent home with horrible results. With 2 young boys of my own, I know that we would be absolutely devastated and vulnerable to wanting to pursue a lawsuit just like this if given the right push. The courts should look for the truth and not try to make people “feel” better.

As for the article:

Revenge/sensationalism seems to be the tone of this article far too much. Whitecoat didn’t hide the “53%” figure…he just viewed it as someone that does not have clairvoyance. That might be an “obfu(s)cation” from your perspective, but I’ll give the benefit of doubt to the doctors there at the time of examination.

I would like to respond to a couple of WhiteCoat’s comments here.

1. WhiteCoat states that I am “assuming someone actually saw” the high band count values because, as he writes,

Yet you repeatedly use the phrase that people “ignored” the results, implying that someone saw the results, but just never did anything about them.

.

I implied no such thing. My statement that “these high band values were ignored until the patient either died or was on the brink of death” does not imply that someone saw the high band values. In fact, I am at a loss as to understand how anyone could infer such an implication from the comment, so I’m a bit nonplussed here. The test for the bands was ordered, and the results of the test were not acted on. Whether a physician looked at the test results and decided they were not worth acting on; or whether no physician saw the test results at all, the results were still ignored. And in either case, there is malpractice – although by whom (the doctor, the hospital, the lab) could be open.

2. The question of the appropriateness of Rory’s treatment is important for the question that would be of interest to this blog: do Rory’s parents (or Rory’s estate) have a claim?

Some of the relevant symptoms that Rory was displaying or reporting were:

– vomiting, 104 fever earlier (“highest ever” for him)

– cut day before

– severe leg pain, difficulty walking

– skin mottling

– temp 102, pulse 140, resp 36/min

– patient “improved” following IV fluids

– this was during flu season

– 53% bands, 13.5 absolute neutrophils, 14.7 white blood cells ( full test results)

If there is even one post on WhiteCoat, or even if WhiteCoat here is willing to state that Rory’s treatment, given these symptoms, was appropriate, please provide a pointer.

(By the way, one of the oddities that I don’t quite understand about the medical community’s reaction to this case is why WhiteCoat and some other doctors repeatedly state, as if it were some critical bit of information, that Rory felt “better” after IV fluids. Is it not the case that an infected, dehydrated patient would normally feel better after IV fluids? And if so, why mention it repeatedly as if it suggest Rory did not have a bacterial infection? I’m frankly speaking from my own experience here – when dehydrated and infected, I felt better after IV fluids, but was still infected, still had to go to the ER and get IV antibiotics. It’s common sense isn’t it – ameliorate a symptom, the patient feels better?).

First:
ig·nore?[ig-nawr, -nohr]
verb (used with object), ig·nored, ig·nor·ing.
1. to refrain from noticing or recognizing: to ignore insulting remarks.
In other words, one “hears” the insulting remarks, but makes a *conscious effort* not to recognize them. This it the context in which I took your comment.
Yes, the tests were ordered. Based on the article, the tests were ordered as part of a nursing protocol and, if that was the case, the nursing protocol was misused.
We don’t know whether the tests were seen, or, if they were seen whether the providers determined that they were material to Rory’s disposition.
But it seems as if you have already made up your mind that someone committed malpractice, so debating the issue isn’t likely to be very productive.

Second:
Do Rory’s parents have a claim? Of course. But that’s all it is at this point – a claim. They can claim that malpractice occurred, but in order for their claim to succeed, they have to prove that each party in their claim acted unreasonably.
Unfortunately, a claim is the only way in which the medical providers will be able to defend themselves. Hospital policies, federal privacy laws, and probably directives from hospital legal counsel all prevent the providers from discussing the care publicly. Mr. Dwyer’s article picked out selected facts, hid other facts, and created inappropriate innuendo to bolster his argument that the hospital essentially killed his friend’s nephew. He knew that the doctors couldn’t publicly defend themselves and didn’t disclose that in his article, either.
When Rory’s parents file their claim, they will have to substantiate their claim in the face of the providers’ defenses. Rory’s parents may also be required to explain their own actions and/or inactions.
Several of the symptoms you list are prospective red herrings. What does leg pain have to do with sepsis? How would the presence of leg pain have made the diagnosis of sepsis more likely in Rory’s case? How would the cut to the arm have made the diagnosis of sepsis more likely? Was it even infected? We don’t know. Mr. Dwyer never told us. Does the fever have any relevance in determining whether Rory was septic or whether he had influenza? Was Rory’s pulse rate abnormal in view of his fever?
I’m not going to sit here and argue that Rory wasn’t “sick.” Obviously he was. But every year in this country there are hundreds of thousands of “sick” people during influenza season who aren’t septic. The issue is what steps a reasonable provider should take when faced with a “sick” looking person during influenza season. That’s what Mr. Dwyer’s article should have focused upon. There was a great article published in USA Today about Clostridium difficile and how this infection is killing thousands of Americans each year. Search for it on the search engines or you can click over to my blog as the update I published linked to it today. Read that article and contrast it with Mr. Dwyer’s article.
If we’re going to comment on whether malpractice existed in Rory’s case, then we need to know everything about Rory’s case and care in particular because the “standard of care” is highly fact-specific. So the debate has to end here because we don’t know what steps the providers took in Rory’s case.
If we want a fair debate about whether malpractice occurred, ask Rory’s parents to publish Rory’s medical records. I’ll be happy to host them on my blog. Then we can have a meaningful discussion and draw conclusions based upon all the facts. What you are doing now is like convicting a criminal without allowing him to establish a defense.

Third:
In response to your question about the “oddity” of why doctors make such a big deal of whether a patient has improved after treatment, if a patient is dehydrated and responds to treatment, that improvement is suggestive that the dehydration was responsible for the symptoms. Not conclusive proof that dehydration caused the symptoms, but another clinical piece of information that doctors use in piecing together the puzzle of a patient’s diagnosis and disposition. Truly septic patients may have some response to IV fluids, but are unlikely to get up off the bed and go home.
I have no idea whether you were truly septic in the past and needed IV antibiotics, but your comments and anecdote about being “infected” and requiring IV antibiotics reminds me of one of the problems I wrote about several years ago.
http://www.epmonthly.com/whitecoat/2009/03/assuming-the-worst/
No disrespect intended. I do the same things sometimes.