Medical Malpractice Case Report: $2.375 million plus in failure to properly diagnose and treat brain injury resulting in permanent harm

October 2008

Firm Partner Peter A. Schmit succeeded in obtaining for his client, in a mediation, $2.375 million in a medical malpractice failure to diagnose serious medical condition case, in addition to the monies recovered in the underlying motor vehicle accident. Read the following Minnesota Case Report, Vol.27, No.5, Oct. 2008

Selected Result*

(Excerpts taken with permission from Minnesota Trial Lawyer Association’s (MTLA) “Minnesota Case Reports”)

S.S., age 18, while delivering pizza, was involved in a motor vehicle accident wherein his car was t-boned by vehicles that were racing with their lights off. S.S. was transferred to a local hospital where he was treated and assessed as suffering from a fractured femur, facial fractures, cuts and abrasions. S.S. was assessed by nurses and a physician as having a Glasgow coma score of 15/15. A CT scan was taken and read as negative. Due to developing respiratory issues and other arriving patients, it was determined to transfer S.S. He was intubated for flight which required sedation and pharmacological paralyzation.

S.S. arrived at the receiving facility and was assessed by an emergency room physician as well as by a trauma surgeon. Both physicians suspected S.S. had sustained an acute closed head injury given the mechanism of injury and clinical findings. Sedation and paralyzation continued in the Emergency Room and after transfer to the Intensive Care Unit. Due to the sedation and periodic paralyzation, an accurate neuro assessment was not possible. Healthcare providers relied upon the fact that S.S. had been previously determined to be neurologically stable and had a normal CT scan. After transfer to the ICU, his facial injuries were repaired and in early morning hours he was transferred to the Operating Room for femur repair.

During the surgery, S.S. sustained a 20-30 minute period of hypotension. Upon returning to the ICU, S.S.'s hypotension continued. Medications were administered for the hypotension. Sedation continued for several more hours until it was discontinued as S.S. was not waking up. Eventually a CT scan was ordered which did reveal mild to moderate brain swelling and Mannitol and other treatments were administered. A neurology consult was obtained and an ICP monitor placed. S.S. has undergone considerable rehabilitation and treatment. S.S. has been diagnosed as suffering from a severe brain injury and his prospects for further recovery are not promising.

Plaintiff’s experts, including one of the leading brain trauma authors in the country, opined that given the mechanism of injury, the receiving physicians had to be on the alert for deterioration of S.S.ís neurological status. Furthermore, that accepted standards of practice required the sedation be discontinued so an accurate neurological assessment could have been obtained. Also, that it was a departure from accepted standards of practice to take S.S. to surgery to repair his femur without having a current accurate assessment of his neurological status as it is well known that a brain injury cannot tolerate even brief periods of hypotension. Finally, plaintiff’s experts opined that had earlier and more aggressive treatment of his brain injury been undertaken, S.S’s outcome would have been better.

Defense hotly contested all issues. Defendant disclosed several experts, including biomechanical engineers and physicians, who opined that S.S.'s traumatic brain injury was due to the motor vehicle accident, not the effect of any subsequent medical care. Defendant pointed out that the brain scans of S.S. revealed diffuse axial injury (DAI) which is unamenable to treatment. Defendant also contended that it was reasonable to rely on the negative CT scan and normal neurological exam from the transferring hospital. The underlying motor vehicle accident claim was resolved preserving the malpractice action and preserving S.S.’s worker’s compensation benefits.

Mediation resulted in a recovery of $2.375 million in addition to the monies recovered in the underlying motor vehicle accident.

Peter A. Schmit


Chair, National Personal Injury and Medical Malpractice Group

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